Do Not Put The Cart Before The Horse

“Losing your shirt” or “Bet the company” aren’t just phrases. They can be a reality if a wrong decision is made on whether or how to proceed with or defend against a Products Liability Personal Injury Claim. Knowing what to do is what determines winning your case. And winning your case is why you’re reading this, right?

I’ve been serving the legal community as an Engineering Consultant and Expert Witness for over 20 years. Like many consultants and experts, I decline way too many requests for support because we’re contacted too late to provide the assistance that was needed.

3 Common Reasons for Losing Cases

There are 3 commonly encountered reasons for plaintiff attorneys pursuing a losing or under-performing injury claim, or defense counsel advising their client to settle or dispute a claim with inadequate information:

1) Failure to accurately identify the Actual or Proximate Causes of an injury — the How and the Why of an injury

2) Failure to ensure that negligence can be substantiated or refuted

3) Failure to understand what investments may be required to litigate a case to a successful conclusion

Future articles will address mistakes 2) and 3). Here’s how you turn the first of these 3 mistakes that lead to failure into success.

Know the “HOW” of an Injury (The Actual Cause)

Something broke and somebody was injured or killed. Failure to identify HOW something broke, or often worse, misidentifying how something broke can doom a claim or defense from the start.

There are many ways that an item can break (the HOW). They include bending, compressive, tensile or torsional overloads, stress corrosion, low cycle fatigue, high cycle fatigue, embrittlement and more. Identifying the Actual Cause of the injury becomes even more complex when there are multiple broken parts and the primary failure needs to be correctly identified.

Broken items and malfunctioning equipment have a story to tell. Not conferring with a consultant or expert up-front to help you read and interpret that story can result in your wasting considerable time and money and possibly taking an unwinnable position.

Know the “WHY” of an Injury (The Proximate Cause)

What happened to precipitate the Actual Cause of the injury?

• Was some party or parties negligent in the design, manufacture, marketing, warnings or post-sale duties of the product?

• Or was the product misused, not maintained or simply worn out?

Don’t fall victim to confirmation bias by assuming that the HOW or the WHY for this matter is the same as something you may already be familiar with. Just because the damage looks the same doesn’t necessarily mean that the reasons for the damage are the same. Misidentifying why something broke can also doom a claim or defense.

There are often multiple potential litigants. Conferring up-front with a consultant or expert can usually eliminate the parties that would not be liable and allow more focused claims or responses.