Short answer: those "facts" which the jury believes. In personal injury cases, some evidence has so tenuous a relationship to objective reality that you might think to yourself that one side or another “has to win” its case. Not so.

Take the case of a driver who runs into you from behind while you are stopped in traffic, causing you a serious personal injury. At the accident site the defendant admits to the investigating police officer that he ran into you but offers no “defense” for having done so. Once the personal injury lawsuit is filed, however, the defendant claims that his brakes suddenly and without warning failed, or that you suddenly and unnecessarily stopped your car in front of him. On this basis, the defendant claims he is not responsible for the accident. Under Illinois Law, a defendant is only liable for personal injuries caused by his negligence. Both the “brakes out” and “sudden stop” claims are defenses to negligence.

Who decides whether the defenses are real or merely trumped up so that the defendant can avoid having to pay damages to an injured plaintiff? Must the “facts” be true for the defendant to avoid liability?

The jury has to determine what is true from the evidence produced at trial. If a witness testifies on the basis of faulty perception or faulty memory or because of a financial motive and the jury nonetheless believes that faulty testimony, that testimony is the same as objective fact. The failure of a personal injury lawyer to effectively cross-examine a witness with faulty testimony – to show the jury that the testimony is not fact and should not be believed – can result in you losing your lawsuit.

Take the case of the defendant (really the defendant’s insurance company) hiring a doctor as an expert witness to testify that the accident you were involved in did not result in the need for the knee surgery your doctor performed. The defense doctor – who may not even have examined you or spoken with you – may say that your need for surgery was due to pre-existing arthritis in your knee, arthritis unrelated to your accident. He may say that you would have needed the surgery even had the accident not happened. If the jury believes this witness, the value of your case will be severely limited. Is this an unusual circumstance? No. It is commonplace.

Our legal system is adversarial by nature. Both sides are entitled to present evidence to prove or disprove material facts as to how an accident occurred and the injuries flowing from the accident. Ultimately, it is the jury’s job to determine who to believe and what facts have been proven.

Providing sound personal injury legal advice is not something we charge for. It is a given. If you have been involved in a serious personal injury accident, contact Lipkin & Apter for a free consultation.