How To Be A Good Defendant

Here’s the fact pattern on a case I’m currently working on. The names have been changed to protect me should anyone involved ever see this article. Albert got in his car, backed out of his slightly hilly driveway and into the road. Vickie happened to be driving past the driveway–no stop sign, no yield, such a driveway alongside a road–and Albert backed right into her car. Rear bumper to passenger side doors. As I wrote previously, I represent people being sued for personal injuries, so guess which one of these drivers is my client.  You guessed it–Vickie is my client.  This Einstein Albert backed out of his driveway, paying inadequate attention to traffic on the road, and struck Vickie,who happened to be passing his driveway, and he is suing heryakov3What a country!

I’m not here to preach tort reform, because the fact people are sue crazy is the reason I have a job, but it is nuts out there. I’ve tried cases in which people claim permanent injuries, preventing them from ever working again–ever–and if you were to look at the rear bumper of their cars after their rear-end accident, I could confidently bet you $1,000 you wouldn’t find evidence of an impact. There’s a good chance you or someone close to you will be sued, and you’ll probably have no idea what’s in store for your. Here are some tips on how to be a good defendant.

1.     Don’t try to be nice;

You rear-end someone. His car stopped at a light, yours didn’t.

rear end

You get out of the car to check to see if everyones all right. While talking to the other driver, you say something like, “I’m sorry. I was looking at my phone, to see how many people read my latest blog entry.” You know the expression, “What you say can and will be used against you in a court of law?” Well, that’s correct. Some plaintiff will make a jury furious at you because he has serious spine abnormalities caused by your need to check your blog while driving. Even the words “I’m sorry” are wrong. Why say it?  If fault is clear, like in a rear-end collision, no one needs to hear you own up to it. If fault’s not clear, even the “I’m sorry” as an expression of sympathy (as in, I’m sorry you were hurt because you ran the red light like an idiot) will sound like a apology when a jury hears it.

So, in short, if you have an accident and it’s your fault, there’s a good chance you’ll be sued, and if so, the people suing you are not your friends and won’t be your friends. No need to try to break the ice or show you’re a good person. Just keep to yourself and talk to the cops. And never never admit anything was your fault.  If the other guy asks you why you hit his car, you’re not obliged to answer.

By the way, I was taking a guy’s deposition once, and as I usually do it in a jokey, good-natured manner in the hopes of catching deponents off guard (I do that because I’m evil), the guy was warming up to me, laughing at my jokes, adding a few himself, until his lawyer spoke up. “Mr. Phillips is not your friend.” The lawyer was right.


2.     Shut Up;

Two simple, powerful words. Beautiful in their simplicity. You’re in a deposition, the lawyer asks you, “And what time did you arrive at the scene of the accident,” and you answer, “Let’s see, I had to have the kids at St. Mark’s by 7:30, so I probably left school at 7:45, and then I was supposed to be downtown by 9, blah blah blah.” Not only did your first 30 words not even begin to answer the question, you just suggested to the adversary lawyer you were in a rush. How about this answer? “8:15.” Boom. The calisthenics your mind has to do to get to that answer can very easily be done in your head.


I studied martial arts for about 30 minutes several years ago, achieving the rank of 2nd degree white belt. One of the things they told me is that when you grab someone–say, you grab their collar–you’re essentially saying, “Hey, here’s my arm. Can you break this for me?” When you offer information that may seem irrelevant, conversational, at worst, you give them information they can use against you. At best, you’re wasting everyone’s time. Lose-lose. Just think about the question, and then answer it. Don’t answer the question you think they’re asking, the question they really wanted to ask. Answer the question you heard.

3.     Understand this will take a long time;

Suits take a while. In Florida, for example, a Plaintiff has four years to sue you. Think about it this way; If you’re reading this on July 16, 2013, that means it’s not too late to be sued for an accident you had on July 17, 2009.  And even when the suit is underway, you’ve got another year or so before trial. Maybe longer. Of course, this depends on your jurisdiction.  When I worked in Philly, the court used to try to get you to trial in about a year. If Florida, it goes to trial when the Plaintiff says “ready,” and some go faster than others.

Parenthetically, this delay generally benefits the Plaintiff. If you’re mounting a liability defense, 4 years gives your supporting witnesses time to forget what happened, to move to South America, to die. Evidence can so much more easily be lost as more years pass.

4.     Know that you don’t decide if the case goes to trial;

Your insurance adjuster decides whether your case settles, and for how much. Not your lawyer, and certainly not you. That’s in your policy. Some policies (medical malpractice, for example, I think) allow the defendant a say in how the case is resolved, but not your typical auto policy. In a past entry, I said that trials may average 4 days, often much longer, and you have to go to every day of it.  If you believe the accident was the other guy’s fault, and say “fight it fight it,”  your adjuster may not agree, or he may decide it’ll cost too much money to try the case.  (By the way, that’s not to suggest you shouldn’t express your opinion to your adjuster. He may decide to try a case which ends up with a verdict in excess of your policy coverage, and if you urged him to settle pre-trial…well, our bad faith lawsuit seminar is down the hall.)


It’s important to know-and a lot of my clients don’t-that the insurance company isn’t being sued.  The adjuster didn’t run the light that caused the accident.  If you cooperate, there’s an excellent chance your insurance will pay for everything.  But it’s still your name on the Complaint.  Insurance is not even mentioned at trial.  The word “insurance” could unduly influence the jury’s decision.  Imagine you were covered by AIG and you were sued in 2008–what crazy verdicts would have come from that.  Even though your insurer is not being sued, it’s got the purse and it calls the shots.  

So, in short, don’t text and drive, stay sober, pay attention, and if you have an accident anyway, keep your mouth shut and your camera ready. Bon voyage.

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About Robert Phillips

Robert Phillips is a Miami lawyer still deciding what he wants to do for a living. Once a lover of Pynchon, Pinter, and any other artist whose work he barely understood, he has since "come home" to genre fiction and fandom, where he truly belongs. He focuses most of his fan-attention on his wife Elena and his three little girls, who will one day be a female president, a Pulitzer Prize winning novelist and a supermodel/astrophysicist. (He's not sure which one will be which yet.)

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