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Personal Injury Litigation - What Are Affirmative Defenses?

"Yeah, but it was his fault too!" That sums up in a nutshell what an affirmative defense is in a personal injury lawsuit. In the example of a car accident case, a plaintiff may be injured when the responsible driver runs a red light and a car crash takes place. The injured plaintiff files a lawsuit against the driver alleging that the driver was distracted and texting while driving, and that as a result, the other driver ran a red light. The defendant then responds with, amongst other things, that even if that is true, the injured victim was speeding, and that was at least part, if not all of the cause of the incident.

Affirmative defenses are the proverbial "yeah but" defense. No different than a young child uses everyday ("yeah, but she hit me first"). In a legal context, dealing with affirmative defenses at the pleading stage (when the parties are exchanging formal documents laying out the claims), discovery stage, and at trial, are vital to a successful recovery for an injured victim. If such affirmative defenses are not properly denied, they are often deemed to be admitted, which impacts any recovery a crash victim, or any victim in a personal injury lawsuit, is entitled to. Even if the affirmative defense seems outlandish, it still must be appropriately addressed.

Things like affirmative defenses are why it is important for any victim of a personal injury to contact an experienced personal injury attorney as soon as possible after an incident. An experienced lawyer can guide you through the process to deal with affirmative defenses, or better yet, help you properly conduct yourself to avoid giving the responsible party the ammunition it needs to bring a frivolous affirmative defense. Involving an experienced attorney is one of the best things you can do to maximize your chance for a full recovery of what you are entitled to for your injuries. 

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