Own the Narrative in Comparative Negligence Cases in California

California’s comparative negligence rules can affect the outcome of personal injury cases significantly. For personal injury attorneys practicing in California, understanding the nuances of comparative negligence and employing effective strategies in such cases is critical.

California follows a “pure comparative negligence” system, as outlined in Section 1714 of the California Civil Code. Under this system, a plaintiff’s recovery is reduced in proportion to their percentage of fault.

For example, if a plaintiff is awarded $100,000 in damages but found to be 40% at fault, they would receive $60,000 after the reduction for their share of fault. This framework promotes equitable recovery but invites scrutiny of the plaintiff’s conduct.

In personal injury cases, defense attorneys often assert that the plaintiff contributed to their own injuries. For example, the defense may argue that the plaintiff failed to exercise due caution if they were jaywalking in a pedestrian accident or speeding in a vehicle collision.

Defense counsel also may argue that the plaintiff failed to exercise reasonable care following an incident if they didn’t mitigate damages. This could include worsening their condition by delaying medical treatment or ignoring medical advice.

To maximize recovery, attorneys must counter these arguments proactively through meticulous preparation, strong advocacy, and strategic litigation practices, including by:

Conducting thorough investigations and evidence gathering. Conduct a detailed investigation to uncover all facts surrounding the incident. Collect physical evidence, surveillance footage, and eyewitness accounts to establish the sequence of events. Retain expert witnesses as appropriate, such as accident reconstruction experts or medical professionals.

Establishing a strong liability narrative. Develop a clear and compelling narrative that acknowledges plaintiff’s fault, if any, but that also highlights the defendant’s fault. You should emphasize the defendant’s violations of statutes, regulations, or industry standards.

Examine which party was in the best position to prevent the accident from happening in the first place, then focus on the “but-for” causation—show that, but for the defendant’s actions, the injury wouldn’t have occurred.

Owning “bad facts.” By acknowledging, where appropriate, that the plaintiff shares in responsibility for causing the accident, you develop credibility as well as the opportunity to shape the narrative regarding how and why the incident occurred.

Be prepared to address your bad facts during the mini-opening, jury selection, and opening statement. If you fail to address issues relating to comparative fault of the plaintiff when given the opportunity, you give the defendant the opportunity to strike first on the issue and shape the narrative.

Focusing on jury instruction. You should ensure the court gives appropriate jury instructions based on California’s comparative negligence law. Highlight instructions that emphasize apportionment based on evidence rather than conjecture.

Focusing on burden of proof. Remind the jury that the defense carries the burden of proving the plaintiff’s fault. Argue that any doubts regarding fault allocation should weigh against reducing the plaintiff’s recovery.

Using visuals and demonstratives. Accident diagrams, timelines, and video recreations can help clearly depict the sequence of events and aid the jury. Consider using medical animations to connect the injuries directly to the defendant’s actions.

Attorneys must remember to humanize their client. In cases involving hotly contested liability, some attorneys will spend so much time and effort on liability issues that they fail to develop and convey the human losses sustained by the plaintiff.

Make sure you spend time with the plaintiff, get to know them, and understand who they are and what they have lost. Consider using third-party witnesses such as family members, friends, or co-workers to illustrate what type of person the plaintiff is, and to illustrate how this accident has impacted their life.

California’s comparative negligence rules pose unique challenges for personal injury attorneys, but they also offer opportunities for strategic advocacy. By thoroughly investigating cases, crafting compelling narratives, and skillfully countering defense arguments, attorneys can diminish the impact of comparative negligence claims while maximizing recovery for their clients.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Rouda Feder Tietjen & McGuinn’s Loren Schwartz prosecutes personal injury cases with a focus on catastrophic injury matters.

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