Most industries are more complicated than they appear. For example, the way health care services are delivered to a patient in a hospital involves many more people than doctors and nurses. When a home purchaser seeks a mortgage, numerous people are involved in addition to the agent, broker, or banker.
The legal system is no different. Multiple people or entities are affected by the outcome of a case, and they all want their interests protected. Therefore, to understand the way a personal injury lawsuit progresses through the system, and the manner in which it will ultimately be resolved, one must understand the roles played by many different participants in the system.
In this article, we will discuss the role of defense lawyers in personal injury litigation.
How are defense lawyers hired in personal injury cases?
If you have been injured as a result of someone’s negligence, you’re likely performing research to find a good, experienced personal injury lawyer to represent you. In the end, you’ll hire the person or firm that you believe provides you with the best fit. Thus, it would be logical to think that perhaps the defendant who gets sued in a personal injury lawsuit would do the same thing. But it usually doesn’t work that way.
People who get sued in personal injury lawsuits often have insurance. For example, in Oregon, drivers are required to purchase liability insurance. Similarly, doctors usually carry medical malpractice insurance. Businesses, which may be sued for premises liability, and homeowners, who may be sued for dog bite injuries, similarly often carry insurance that includes liability protection.
One of the key benefits of this liability protection is that the insurance company will provide the defendant with a lawyer and a defense to lawsuits for covered events. Thus, the insurance company, not the insured, chooses the personal injury defense lawyer. This makes sense, because the insurance company usually has the largest potential financial liability (although an underinsured defendant can face personal liability). That’s also why these attorneys are frequently referred to as “insurance defense” attorneys.
It should be noted that a personal injury defendant is allowed to hire additional counsel of his or her own choosing at the defendant’s own expense. Additionally, uninsured defendants must hire their own lawyers.
The Role of the Defense Lawyer
The goal of a personal injury defense lawyer is to protect the interests (which are usually financial) of the insured defendant and the insurance company, so long as those interests are aligned. That means avoiding liability, if possible. If total avoidance of liability is not possible, it means limiting the plaintiff’s recovery to the greatest extent possible.
If the interests of the insured and the insurance company are not aligned (such as when the insurance company contends the defendant is not covered by the policy), the insurance company may actually hire separate lawyers for the company and for the insured. The bottom line is that the insurance company wants to pay as little as possible, and the defense lawyer wants the defendant to be responsible for paying as little as is possible.
The Litigation Process
During litigation, the defense lawyer will handle discovery issues, legal motions and briefing, and the trial of the case on behalf of the defendant. During discovery, the defense attorney will attempt to develop evidence that supports the defendant’s side of the case and contradicts the claims of the plaintiff. For example, in an automobile accident case, the defense attorney will seek evidence that suggests the defendant did not cause the accident or was only partly responsible.
The defense lawyer will also seek evidence that mitigates the plaintiff’s injury claims. For example, most defense lawyers comb through all of the plaintiff’s medical records, attempting to prove that the plaintiff’s injuries were not caused by the accident, or that they are not as severe as claimed. The defense lawyer usually deposes the plaintiff and others to carefully question people about these issues.
Insurance defense attorneys often receive special training from insurance companies, have tremendous resources at their disposal, and are good at what they do. When dealing with defense counsel, you should always remember that, even if the lawyer is a nice person, his or her job is to reduce the value of your case. However, you should always act professionally, understanding that the opposing attorney is usually heavily involved in evaluating and valuing your case.
Most importantly, you should have a lawyer on your side at all stages of the evaluation and litigation of the case. Good personal injury defense lawyers are well-trained, experienced, and available to make sure that you have a level playing field. It is rarely a good idea to proceed alone, because the insurance company will always have adjusters and attorneys assisting them. Just as the insurance company is focused on limiting your claim, you need someone focused on ensuring that you receive everything you’re entitled to.
Call with Questions
At Nelson MacNeil Rayfield, we have gone toe-to-toe with some of the best defense lawyers in Oregon. We respect their place in the system, but we do not fear them, and we will never stop fighting for our clients. We believe that wrongdoers must be held accountable for their actions so that all of society will be safer. If you have questions, please call us and we will be happy to answer them.