Available defenses for a defendant Lawyer Manual

Defenses

• Defendants can attack any or all of Plaintiffs’ elements of proof:
• Agency (the driver was not doing anything for the owner, nor was she an employee)
• Negligence (the other driver stopped suddenly and did not have any working brake lights; another car cut me off)
• Causation (the Plaintiff could not have been hurt – was walking around at the scene – said she was fine; there was not even a scratch on the other car);
• Reasonableness or cost of treatment and repairs (6 weeks of massage was unwarranted, a new bumper was not needed)

Defendants must raise affirmative defenses, particularly with respect to the actions of other parties, right away in the Answer. Also, defendants should be looking at whether the plaintiff or any other driver may have contributed to the accident, and seek permission to add Counterclaims and Third Party Claims right away.