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New York Personal Injury Lawyers

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The Most Common Defense Arguments in Personal Injury Cases

By Dansker & Aspromonte

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July 20, 2024

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As a plaintiff in a personal injury case, you must prove four elements of your claim to succeed:

Duty of care
Breach of duty
Causation
Damages
The most common defenses presented by insurance companies or defense lawyers in personal injury cases attempt to argue that one or more of those elements is not able to be proven in your case.

Such claims can lower your settlement value or make it impossible to get compensation. However, you can seek the best possible settlement by anticipating the other side’s arguments and preparing evidence to refute their defenses. Our injury attorneys can help.

Your Injury Was Not Directly Caused by the Other Party
In your personal injury case, you need to prove that the defendant’s actions or inactions were a proximate cause of your injuries. An action is considered to be a proximate cause of an accident when it can be shown to be a substantial factor in bringing about your injuries.

The defendant may argue that no causation exists between their actions (or careless inactions) and your injuries. In other words, they may acknowledge that you were injured but claim that their actions did not proximately cause your injuries.

Within this defense, two of the most common excuses for why defendant was not the legal cause of your injuries include:

That the injuries existed before the accident
That the plaintiff was injured after the accident
For example, let’s say a driver who failed to stop at a red light rear-ended your vehicle and caused you injuries to your lower back. If you had previously suffered from low back pain, the defendant could argue that your previous back injury was the cause of your pain, not any injuries from the accident.

If some other event was the actual cause of your injuries, the defendant would not be liable for your damages. In many cases however, a pre-existing medical condition can be worsened by a subsequent accident that is the fault of another.

A skilled personal injury attorney can help you fight for fair and reasonable compensation despite the existence of a pre-existing condition.

For a free legal consultation, call (212) 540-2984
You Were Not Injured in the Accident
This defense may also assert that you are not actually injured and or damaged by the actions of the defendant.

Medical records for your diagnosis and treatment can help to refute this defense. In some cases, the plaintiff and defense might submit opinion reports from medical experts to support their claims. The totality of the evidence will then need to be considered to proceed with a settlement or award.

Our lawyers have decades of experience fighting for injury victims, carefully reviewing their medical records and retaining experts to help prove your damages even when the defense denies your claims.

Your Injury Is Not as Extensive as You Claim
Similar to a “no injury” claim, the defense may argue that you were not injured as badly as you say you were—and therefore, your claim is not worth as much. Here, the defense may acknowledge your injuries, but attempt to minimize your injury or suffering.

For instance, let’s say that you suffered a traumatic brain injury (TBI) when crossing the road as a pedestrian, and a driver failed to yield before making a right turn. You required months of physical therapy and six weeks away from work.

The defense may argue that your TBI was more moderate than you claim, and you have made a good recovery. At Dansker & Aspromonte LLP Associates, we carefully consider your entire medical history and future when we evaluate a case involving your injuries.

Our lawyers will never agree to resolve your claim until you are satisfied that the compensation offered to you is fair and reasonable.

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How Our Lawyers Can Help You Seek the Best Results in an Injury Claim
Our personal injury lawyers are familiar with these common defenses in personal injury cases. We know how to anticipate and refute these defenses.

Our firm will submit evidence and testimony regarding your medical diagnosis, treatment, symptoms, and physical limitations to prove the extent of your injuries. Our team will prepare a solid case and prove the extent of your damages and losses by:

Conducting a detailed investigation of your case
Getting medical records and statements from your doctors to prove your condition
Retaining experts in the applicable fields to prove the full extent of your injuries and the effects of those injuries into the future
Evaluating the full extent of your economic damages such as lost income or benefits for the past, present and future
Compensation We Will Help You Recover in an Injury Case
We are prepared to handle every step of your case and prove the extent of your injuries for a fair settlement or jury verdict. Your lawyer will work to seek maximum compensation for each and every physical, emotional and economic damage you sustained.

Depending upon the circumstances of your case you may be entitled to recover the following types of damages:

Pain and suffering and loss of enjoyment of life
Mental anguish
Future pain and suffering if your injuries are permanent in nature
Medical expenses
Lost wages, past, present and future
Reduced earning capacity
Any out of pocket expenses resulting from your accident
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When Can You Contact Our Team for Assistance?
Whether you were in a car accident only days ago or are already receiving settlement offers, we can help. Contact us if:

You were just in an accident and want to learn more about your legal options.
You want to explore how our attorneys will handle common defense arguments.
You are already in the midst of the claims process and have questions.
You’ve received low settlement offers and need advice.
You are unhappy or lack confidence in your present lawyer
What You Can Do to Set a Strong Foundation for Your Injury Case
We recommend that you take the following steps to ensure the best chances of financial recovery:

Call the police after an accident

Immediately after an accident, calling the police will help you document the happening of an accident. Often the police will record observations at the scene that will help us prove fault and build a strong claim for you.

Get All the Medical Care You Need
Call for medical attention at the scene of the accident. If you do not receive immediate medical care, the at fault party may be able to argue that your injury was not serious. After you receive emergency care, continue following your doctors’ advice.

If you stop your prescribed medications, physical therapy, or other recommended treatment, this could hurt your case. The opposing side may claim you made your injuries worse.

Avoid Commenting on Social Media
Don’t share details about the accident or your injury online. It’s normal to want support from family and friends during a challenging time, but doing so on social media can also hurt your case. Again, an insurer may use any information you share to lower the value of your losses.

Avoid Accepting Offers Until You Get a Case Review
Representatives of the other side may offer you money shortly after the accident. You don’t have to accept or sign any agreements until you know this offer will cover the full extent of your losses though.

One good way to learn if a potential settlement is fair and will address your long-term care needs is by speaking with our team. We can investigate your injury and tell you if the settlement offer is fair. In most instances however, the amount of an early offer is substantially lower than the full value of your claim.

Get a Free Consultation from Dansker & Aspromonte LLP Associates
You don’t have to worry about common defenses in a personal injury case—our team will anticipate them and advocate for your best results. Dansker & Aspromonte LLP Associates will seek fair compensation for your pain and suffering, medical bills, lost wages and other losses.

Call today to speak to our team. We help victims of injury throughout the New York City metropolitan area, including Manhattan, Brooklyn, the Bronx, Queens, Staten Island and Nassau and Suffolk Counties. Call us today without delay.

If we agree to accept your case, you will not be required to pay us any money upfront. We only earn a legal fee when you recover compensation.

Call or text (212) 540-2984 or complete a Free Case Evaluation form

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