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Doug Landau
Doug Landau
Attorney • (866) 735-1102 Ext 610

Why is the injured plaintiff put on trial ?

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To many plaintiffs, it often feels like by bringing a lawsuit, they are suddenly put on trial. The defendant’s insurance company—whether for a slip and fall, a car crash, or some other personal injury—is usually very adept at shifting attention away from the defendant and onto the plaintiff. This certainly does not seem very fair. Why does the injured party have to account in excruciating detail for every single doctor’s or therapist’s appointment? Why is it that the injured party has to be interrogated about bills, appointments, and medications? Shouldn’t the case be about what the defendant did, about the defendant property owner's unsafe decisions ?

The answer to this question is closely related to the issue of “causation” that we talked about here last week. Basically, if you are seeking recovery for a personal injury under negligence, then you have to prove that the defendant is actually responsible for your injuries and the medical expenses that follow. A plaintiff has to be able to demonstrate that all of those medical bills, therapist appointments and prescriptions can actually be traced back to the accident itself.

In other words is your knee bothering you because you slipped and fell on the defendant’s property or because an old sports injury is acting up? Do you have headaches because of a car accident or have you always suffered from migraines? Or maybe it’s even more complicated—maybe that sports injury or those migraines were always there, but now they’re a lot worse because of the accident.

The trick here is when it comes down to dollars and cents and the amount the defendant is going to pay, the courts want to be certain that the defendant only pays for what he or she caused. So, that explains why those defense attorneys are so tedious—and often relentless—in their questions about medical history and bills. It can seem pretty intrusive to a plaintiff, but at the end of the day, it is about ensuring that both parties are treated fairly.

So, the defendant, through her lawyers, has the right to question whether bills and treatment can be fairly traced back to their own negligent actions, but that right is not without limits. A good attorney will stick up for their client when the questions become unnecessarily intrusive or stop having anything to do with the accident itself. A good, experienced personal injury trial lawyer will prepare a plaintiff for questions that will naturally come from defense counsel. If you do not feel prepared to answer questions in writing, orally and under oath, speak to your counsel BEFORE responding.