5 Tips on Litigating Negligence Cases by Parker Waichman

5 Tips on Litigating Negligence Cases by Parker Waichman

5 Tips on Litigating Negligence Cases by Parker Waichman

For the plaintiff to sue for negligence, they must prove each case element, including duty, breach of duty, cause, in fact, proximate cause, and damages. Successfully litigating negligence cases involves a deep understanding of the law, investigating the evidence, exploring all settlement and negotiation opportunities before filing a lawsuit, excellent communications skills, and knowing the client’s goals in the action.

In this article, we discuss five tips on litigating negligence cases.

Successfully Litigating Negligence Cases

To prove damages, the plaintiff’s attorney must know how to prove negligence. The plaintiff must show the defendant’s negligence that resulted in injury and/or loss. Without doing so, the plaintiff’s case might not be successful. A successful negligence claim must show that the plaintiff caused harm.

Juries in a negligence case often receive instructions about comparing evidence, testimony, and facts in showing that the elements of the case were satisfied.

Tip #1. The Litigator Must Know How to Legally Prove Negligence.

Duty and negligence.

A negligence case outcome relies on whether a defendant had a duty to the plaintiff:

  • Duty must be considered because the law considers the relationship of the plaintiff and defendant to ascertain that the defendant was required to act in a specific way.
  • The law also considers questions about the “standard of care” when considering the defendant’s duty to the plaintiff.
  • Typically, a judge determines if the defendant owed any “duty of care” to the plaintiff.
  • A judge may determine that a duty exists if and when a “reasonable person” believes that duty exists in similar conditions or circumstances.

For instance, if the defendant was loading heavy boxes into a car and hit the plaintiff with such a box, the court must determine if they owed a duty to the plaintiff. If the car was parked in a public place, e.g. adjacent to a public walkway, and the plaintiff was walking past the parked car, the judge may determine the defendant’s duty to them.

In contrast, if the plaintiff was trespassing on the defendant’s personal property and the defendant did not know that the plaintiff did not know they were there when the accident happened, the judge is less likely to determine that the defendant owed such duty.

The breach of duty

It is insufficient for a party to prove that another party owed money, services, or duty. The client’s attorney must show that the negligent party breached the duty owed to the other party:

  • A breach of duty occurs when the defendant fails to exercise “reasonable care” in the fulfillment of duty. The question of the defendant’s breach of duty is determined by the jury.
  • In the above example, the jury must determine if the defendant demonstrated reasonable care in moving heavy boxes into a vehicle near the defendant.

Cause in fact.

Under the definitions of legal duty in a negligence case, the plaintiff must show that a defendant’s acts or decisions caused their injury or loss. This is sometimes called but/for cause. In other words, but for the acts of the defendant, injury or loss to the plaintiff would not have resulted. The injured party in the example might demonstrate the element by arguing that but for a defendant’s negligent actions of moving heavy boxes, they would not have been injured.

Proximate cause.

The concept of proximate cause in negligence law refers to the defendant’s responsibility in the case:

  • The defendant is responsible for those harms that they should have considered through their actions.
  • If the defendant caused damage or loss that was outside of the range of risks that they might have foreseen, the plaintiff in the negligent case cannot show the actions of the defendant were the proximate cause of the damages.

In the above example, the passerby may have proximate cause by arguing that the defendant could or should have known that harm could result from the heavy box hitting them.

In contrast, if the harm was less connected to the defendant’s actions, the plaintiff may be less able to prove the element. For instance, if the heavy box hits the passerby on skates and the skates are damaged, the plaintiff arguing proximate cause must show that the impact of the heavy box damaged the skates.

Negligence and damages.

The plaintiff in a negligence case is required to show a legally recognized loss or harm, e.g. injury to property or person in a vehicle accident. The defendant’s failure or inability to exercise the legal concept of reasonable care must also correlate to “actual” damages to the party to whom the defendant party owed the duty of care. If the plaintiff wants to bring a personal injury claim, they must do so within the mandated time frame allowed by law.

Tip #2. The Litigator Must Investigate the Evidence.

Successfully litigating negligence cases relies upon the lawyer’s willingness to investigate the evidence. It’s important to verify who, what, where, when, and why concerning the facts of the case.

In addition, it’s necessary to rely on strong medical evidence to show the plaintiff’s injury resulted in harm or loss. The client’s case may benefit from the engagement of expert witnesses. Before engaging the expert witness, the litigator must know that the court will accept the expert’s testimony.

Tip #3. The Litigator Usually Negotiates All Potential Avenues for Settlement

Most clients are not eager to go to court. Stress and strain about the trial may add to the plaintiff’s health problems or injuries. Successfully litigating negligence cases involves the litigator’s willingness to understand the client’s preferences. In many instances, the client wants to avoid a trial.

Tip #4. The Litigator Uses Excellent Communications Skills.

Successfully litigating negligence cases relies upon the litigator’s strong communications skills. Active listening, succinct verbal and written communications, and respectful treatment of all involved are necessary to achieve the client’s goals.

Tip #5. The Litigator Understands the Client’s Goals.

Proving negligence and obtaining appropriate damages for the injured or harmed client may be essential to their financial future. Some clients may feel confident about going to trial. Others feel physically or emotionally drained by the prospects of putting their matter in the hands of the legal system.

How to Prove a Negligence Case

An experienced lawyer knows how to argue each of the elements in a negligence case. A knowledgeable attorney understands the evidence and how to achieve the best-case outcome. They understand how to calculate the damages resulting from a loss of injury. They know the law concerning how to win damages for medical bills or distress. They’re skilled in negotiating negligence cases, settlements, or arguing your matter in court before a judge and jury.

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