What can everyone do?
Praise and blame.
Nietzsche
The defendant blames you for what happened. That’s the affirmative defense of comparative fault.
Here’s what you should know.
How California Comparative Fault Works In Litigation
A defendant drives his car into your car. He’s at fault and you’re injured. You sue the defendant by filing a complaint.
The defendant files an answer to the complaint. In that answer, the defendant raises asserts affirmative defenses. Affirmative defenses are reasons why the defendant claims he is not responsible.
A common affirmative defense is comparative fault. By asserting comparative fault, the defendant says you are responsible for the car crash. The defendant is not suing you. He’s saying he’s not at fault because you are. It’s a distinction with a difference.
Because comparative fault is an affirmative defense, the defendant has the burden of proof. He must show that you did something that caused or contributed to the car crash. He may say you pulled out in front of him, stopped too soon, drove too slow. If defendant cannot prove you did anything that caused or contributed to the car crash, you should move to dismiss the affirmative defense of comparative fault.
California Comparative Fault Jury Instruction
See CACI 405. It explains the concept of comparative fault and cites to helpful case law.
How California Comparative Fault Works At Trial
Let’s say you go to trial and win. The jury finds the defendant was at fault. But the jury finds you were also at fault for the car crash. Any percentage of comparative fault reduces your award by that amount. If the jury awards you $100,000 in damages but finds you were 20% at fault, your damages are reduced by 20% to $80,000.
Comparative fault can be a serious defense to your lawsuit. Expect defendants and their insurance companies to use it every chance they can.
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