Posted By Alan Sackrin on April 1, 2014
Last Update: 04/23/16
Do Old Injury Cases Impact Injury Compensation?
Filing a personal injury lawsuit down at the courthouse is the right of every American and with that right comes a downside. Once a lawsuit has been filed, it’s permanent. It’s a matter of public record, forever.
So, what happens when you are hurt here in Florida and the other side is balking at taking responsibility for your losses or they deny your claim or make a lowball settlement offer? You file a lawsuit under Florida personal injury law to get justice.
This might be an easier step to take if you’ve been through the litigation process before, because you know what to expect. Your litigation experience may be helpful, but that old lawsuit might also be a problem for you in obtaining a fair settlement offer or jury award.
The Prior Accident Lawsuit and the New Personal Injury Case
First of all, the defense attorney will know about your past case. It is easy enough to track down in the clerk of court records – and you’ll have to reveal the details of your past cases in discovery when the attorney requests information about your history of injury lawsuits.
Once the defense lawyer knows that you’ve been involved in another injury lawsuit, then he or she will use this as part of their argument. Maybe the argument will be that your old injury, and not the one that is the basis of your present claim, is the real cause of your current damages. In other words, the old injuries have been aggravated by the new accident; the new incident and the new defendant aren’t the true cause for your losses, the defense will say. (More on this issue in a future post.)
Another argument that you may hear if you have more than one injury claim in your lifetime is that you’re greedy. That you have a monetary goal in filing lawsuits and pursuing injury claims and that your litigation history is evidence of this. The defense may assert that you’ve only filed the new lawsuit because you found that it was profitable when you filed a lawsuit in the past.
Either way, that old case will be used against you. Why? Under Florida law, a plaintiff cannot recover twice for the same injury — you get one chance, one opportunity to obtain personal injury damages from those responsible for your injuries. The defense lawyer in this new lawsuit is trying to limit or undercut your new claim for damages in any way that he or she can. That’s their job.
How to Respond to the Defense Lawyers Arguments When You Have a Past Injury Lawsuit
For experienced personal injury lawyers, the tactics of defense attorneys in these situations comes as no surprise. It’s expected that any plaintiff with a litigation history will have to deal with insinuations about the plaintiff’s integrity and the credibility of the new accident claim.
If there is any factual connection between the two lawsuits, then you can expect a big fight to get evidence of that old lawsuit introduced into the new case. The old case will be considered “relevant” if there is any connection with the harm you’ve suffered (say, a fall on the job or a similar bodily injury) or if there is a connection between the defendants (say, the same employer).
Your injury lawyer will argue to the trial court judge that even if it is somewhat relevant, that the potential bias to you outweighs its value as evidence in the new case (among other arguments such as your constitutional right to file a claim should not be used against you). It will be up to the judge to decide whether or not the old lawsuit comes into evidence and is to be considered in the new lawsuit.
Two More Ways The Credibility of Your Case Can and May Be Attacked
There are two other ways a defense lawyer may try to undermine the credibility of your injury claim. One is a past criminal conviction. That is a different sort of litigation history and while your injury lawyer will argue that there is no legitimate reason other than prejudicing the jury to introduce evidence of a criminal case in a civil injury trial, the defense will argue that there are vital reasons that the conviction should come into the case for consideration – for example, a criminal conviction that reveals dishonesty or fraud on the part of the plaintiff.
Another way your case may be attacked is based upon the litigation history of your injury lawyer. Defense lawyers will not only investigate the past of the plaintiff, they will also learn about the reputation and history of the plaintiff’s lawyer, too. Not all plaintiff’s lawyers are the same, of course. Unfortunately, some law firms are “settlement farms or mills” and are known for not going to trial (and if the defense knows they aren’t going to have to try the case in front of a jury, then they may be more inclined to make a low-ball offer).
What Should You Do Now?
A good piece of advice if you have been harmed in an accident, is to at least speak with an experienced personal injury lawyer before you file a claim to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.
- 5 Things You Should Know About Car Insurance Adjusters When You Have A Car Accident Claim
- How Do Florida Juries Decide Damage Awards When The Victim Has A “Pre-Existing Condition?”
- Settling A Florida Personal Injury Claim Without A Lawyer
Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.