What Is a Defendant?

A simple personal injury lawsuit includes two parties: the plaintiff (the party seeking compensation) and the defendant (the party that the plaintiff is seeking to hold responsible for compensation).

Sometimes, people use the term ‘defendant’ loosely to describe the accused party in personal injury settlement negotiations. In another context, a defendant is someone charged with committing a crime. 

The Burden of Proof

The Burden of Proof

In a personal injury claim, the standard of proof is ‘a preponderance of the evidence.’ It roughly means ‘more likely than not.’ 

In other words, to win, you must prove there is at least a 51% chance you are right. Initially, the burden of proof is on you to prove your claim. This burden of proof can shift to the defendant under certain circumstances. 

How To Sue Someone

To file a lawsuit, you must complete the following tasks:

  1. File a written complaint with the court clerk. The complaint describes your grievance and your proposed remedy.
  2. File a summons with the court clerk. The summons tells the defendant how to respond to your complaint. 
  3. Pay the court clerk the filing fee.
  4. Have a neutral third party serve the summons and the complaint on the defendant. If the defendant attempts to evade service, diligent efforts to serve them will be acceptable to initiate the lawsuit.

Once you complete these steps, your lawsuit is filed. You’ll probably never need to worry about the statute of limitations again. It’s possible, however, that the issue could re-arise under certain circumstances.

Affirmative Defenses

A defendant has two possible responses available to a plaintiff’s claim of personal injury: issue a general denial or raise an affirmative defense. 

In a general denial, the defendant simply asserts that your evidence is insufficient to justify your claim. The defendant doesn’t have to prove a general denial. Instead, it is you who must prove that your assertions are true.

In an affirmative defense, it is the defendant who asserts the defense, and it is the defendant who must prove that defense. The consequence of proving it is that the defendant either erases or reduces their own liability.  

Below is a list of some of the most common affirmative defenses.

  • Comparative Negligence: Also known as contributory fault. The plaintiff’s own carelessness partially caused their injuries. This defense, if successful, will reduce the defendant’s liability in proportion to your percentage of fault. If they can prove you were at least 51% responsible for your own injuries, however, the defendant will owe you nothing per state law.
  • Assumption of Risk: The defendant asserts that you knowingly engaged in or accepted a dangerous activity, thereby accepting the risk of injury. 
  • Statute of Limitations: The plaintiff waited too long to file their lawsuit. In Illinois, you typically have until two years after your injury to file a personal injury lawsuit (though there are exceptions). If you miss the deadline, the judge will dismiss your claim.
  • Failure to Mitigate Damages: You didn’t take reasonable steps to reduce the effect of your injuries. You failed to follow your doctor’s instructions, for example, worsening your injuries. If this defense succeeds, the defendant will be excused from paying for any avoidable harm you inflicted upon yourself.

This list does not represent all possible affirmative defenses.

Pretrial Discovery

The pretrial discovery process takes place after you file a lawsuit. A defendant might aggressively use the pretrial discovery process to either deny the sufficiency of your evidence or to buttress an affirmative defense. 

They might, for example, demand that you submit to an independent medical examination conducted by a doctor of their choice. 

During the discovery phase, both you and the defendant have the right to demand evidence and information that is in the possession of the other side. Here are some of the tools available to you:

  • Testimony from opposing witnesses, which you elicit under oath during a deposition.
  • Written questions (interrogatories) that the other side must answer truthfully.
  • Demands for copies of documents.
  • Demands for inspection of physical evidence. The defendant might even demand that you allow their doctor to inspect your injuries.

If either side refuses to cooperate, the court can intervene with sanctions.

A Chicago Personal Injury Lawyer Will Fight for Your Right to Compensation

It’s difficult to win a personal injury claim alone, especially with a determined and resourceful defendant. Your best bet is to seek the assistance of an experienced Chicago personal injury lawyer at Zayed Law Offices Personal Injury Attorneys. Call us today at (312) 726-1616 or complete our online form for a free initial consultation.