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Top 3 most common defenses in bicycle accident and injury cases

August 16, 2012 by Steven M. Gursten

My blog today is based on two cases I am preparing for trial now involving bike enthusiasts.

Hopefully these thoughts will prove helpful  for lawyers handling bicycle accident cases.  There are certain  common defenses that lawyers see in these types of unique lawsuits.

I’ve recently been preparing for two focus groups for my cases.  The first case involves a serious accident  for a very well-known Michigan endurance athlete who has already had two surgeries after he was hit by a truck on a bike earlier this summer.  The second case tragically involves a man on a bike who was killed by a truck making an illegal right-hand turn when he was legally in the crosswalk.  In both cases, confronting the unfair prejudices and biases that some people have toward bicyclists and how defense insurance lawyers exploit these biases in the courtroom becomes important.

Defense insurance  lawyers in bike accident cases frequently rely on the following arguments:

    1. The bicyclist was speeding: This presumption is generally made by witnesses because their ability to gauge a bicyclist’s true speed is often inaccurate, and can be estimated as way too fast.
    2. The bicyclist was not visible to the car: A common argument is that the defendant “just didn’t see” the bicyclist. Know that your client is not invisible and a driver has a legal responsibility to see what is there to be seen.
    3. The bicyclist was in the wrong place in the lane: Again, a person riding a bike  is not invisible. Remind the defense of your client’s legal place in traffic.  Bicyclists riding legally in a lane of traffic are easier to see compared to bicyclists riding on the shoulder. Also, bicyclists can sometimes be obscured by traffic, like a large SUV or truck.
    4. People don’t like bicyclists:Beware of defensive attribution in these cases.  Even when your client has the legal right of way in these cases, jury nullification arguments by defense lawyers is alive and well.  People have a psychological need to blame the victim, and to say in effect “I don’t care what the law is, I would never have put myself in that position.”  The problem with this is that people have a right to assume that other drivers will follow the road.  Imagine what a drive would be like if you couldn’t safely assume other drivers will stop for a red light. No one could ever get anywhere.

In 2009, 630 bicyclists were killed and 51,000 were injured in bike accidents with cars and trucks on the roads,  according to the National Highway Traffic Safety Administration.

Lawyers who help people injured while riding bicycles should prepare ahead of time so they can better protect their clients from juror bias.  Stay tuned for more blogs on tips for bike accident lawyers after my upcoming focus groups.

– Steven M. Gursten is an attorney handling automobile accident and bicycle accident lawsuits. He is head of Michigan Auto Law and president of the Motor Vehicle Trial Lawyers Association. He frequently writes and speaks on bicycle safety.  On weekends, you can often see Steve on his bike at Kensington.

Related information:

6 most common bike accidents

What happens if I’m injured in a bicycle accident in Michigan?

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. Call (248) 353-7575 for a free consultation with one of our lawyers.

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