Did you know that there is a way to meet all of the other elements required to win your Virginia auto accident case at trial and still lose because of an ancient rule? That’s right, Virginia is one of the few places in the nation where if you are found to be 1% at fault for your car accident, you cannot recover a single penny.
Only Maryland, D.C., North Carolina and Alabama are in this group with Virginia. In all other states, the fault for the accident gets compared between the two parties and their damages are apportioned accordingly.
The law is called contributory negligence. What it means for Virginia car accident victims is that if you are even the slightest bit at fault for the crash, you cannot recover for your medical bills and you cannot recover for your property damage.
How can I be 1% at fault for a crash?
It’s helpful to have a couple of examples:
- If you’re going through a green light in Fairfax at ten miles over the speed limit and a driver comes from your right and runs a red light, t-boning you, the insurance company might argue that your speed contributed to the crash because if you’d been going a little bit slower, you might have seen the other driver coming.
- If you’re driving down a highway in Arlington at dusk without your headlights on and a car makes a left turn directly in front of you, the insurance company might argue that your lack of headlights contributed to the crash because if they’d been on the other driver would have seen you coming and avoided making the turn.
Contributory negligence is a tough law. In most other states, in either of the two scenarios, the insurance company might say “ok, our driver was 95% at fault for the crash, but since we think you were 5% at fault, we’ll make you an offer to settle at 95% of the value of the case.” You might not like the result, but at least you’d be able to pay your medical bills from the crash. In Virginia, there would likely be no offer made in either case and you would have to take your case all the way to trial.
If you’re wondering how other states work, follow this link.
At some point after you’ve filed a lawsuit in a personal injury case in Virginia, you will probably be asked by the defendant’s lawyer to submit to a deposition. Short of trial itself, this is probably the most intimidating aspect of the litigation process for an auto accident victim. A deposition is the opportunity of the other side to sit down with you, your lawyer and a court reporter and ask you questions. Unlike your Interrogatory Answers, the attorney gets to ask follow-up questions to explore your case.
Depositions do not have to be scary. The attorneys at the Law Offices of David L. Marks will prepare you to give a deposition by guiding you through the process and then taking the role of the defense attorney and giving you the opportunity to understand what you’re in for. We’ve attended hundreds of depositions with just about every defense attorney in northern Virginia and so we know what to expect from them and can share that knowledge with you.
Again, the most important thing is to be totally honest. Remember that the defense attorney is thoroughly familiar with your case. In addition to the Interrogatory Answers that we sent over, they’ve probably subpoenaed your medical records, spoken with the police officer and also tapped into the large insurance company database to see if there are any auto accidents that you didn’t tell them about.
We also have the opportunity to take the deposition of the defendant. This often occurs on the same day as your deposition and is our chance to find out what the defendant is going to say at trial:
- Is he going to claim that his brakes failed?
- Had he been drinking before the crash?
- Did this crash occur after he’d been on the road for 16 hours?
- Does he have any witnesses that we don’t know about yet?
Though the deposition process can be intimidating, it really is one of the few chances that you have to express to the defense attorney, in your own words, how this case has affected your life. Giving a good deposition lets the defense attorney know how you would present at trial to a jury and encourages them to make a report back to the insurance adjuster that the offer to settle your case ought to be increased because of how well you did.