Will going to trial with a risk of contributory negligence hurt my chances?

  • By:David Bate

As a car accident lawyer respects might attest, lawyers will generally evaluate a case on two broad factors: liability and damages.  If there are catastrophic injuries involved, a lawyer is more likely to take on a case with a questionable police report, if the client can articulately and clearly prove why the police report is wrong.

However, when liability is at issue, the value of the case can turn on the issue of contributory negligence.  Each state has a different policy towards this issue, and you should consult a car accident lawyer in your jurisdiction to determine the law in your state, but each state utilizes one of four different systems: (1) pure contributory negligence rule, (2) pure comparative fault system, (3) modified comparative fault system, and (4) slight/gross negligence comparative fault system.

Regardless of where your car accident occurred, you should know that in the event a jury finds any fault on your part, it can severely curtail your case.  It can also be fatal to your case depending upon the state where the accident occurred and the degree to which the jury finds your degree of fault.

51% Bar Rule

In Texas, it is only slightly more beneficial to the Plaintiff.  Texas follows the 51% bar rule, which means that if the jury finds that the parties were equally at fault in the car accident 50-50, then the Plaintiff can still recover.  However,  if the jury finds that the Plainfiff is 51% at fault, the Plaintiff takes nothing, even if he or she incurred $1 Million in medical bills as a result of the accident.

Louisiana follows a pure comparative fault system.  In that system, the Plaintiff’s recovery will be reduced by the percentage of liability.  For instance, if the jury finds for the Plaintiff for $1 Million, but also finds the Plaintiff 90% at fault, the Plaintiff will only receive $100,000.

Additionally, the Plaintiff in most jurisdictions should realize that his or her recovery will be reduced by his or her portion of fault.  For instance, even in Arkansas or Texas, if the jury finds for the Plaintiff for $1 Million, but also finds the Plaintiff 40% at fault, the Plaintiff will only receive $600,000.

For these reasons, it is imperative to hire a veteran litigator and experienced trial lawyer who has been involved in protecting the interests of victims of negligence for years.


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