Potentially. A Maryland liability insurance company may argue that an injured pedestrian caused or contributed to the collision and use contributory negligence as a basis to deny the injury claim. But the insurance company’s allegation is not proof of the defense.

The driver who struck you may ultimately be the named defendant if litigation is initiated. But that driver ordinarily is not the person investigating your movement, analyzing the crosswalk, reviewing surveillance footage, deciding whether you were visible, developing a contributory-negligence position, hiring defense counsel, or determining what the claim is worth.

The liability insurance company standing behind that driver generally performs those functions.

That is why a serious pedestrian case can quickly become an injury insurance dispute. The other driver might say “you walked in front of me.” the claims adjuster that denies your case could say something like: ” Although you sustained serious injury Maryland’s contributory negligence law prohibits you from any financial recovery”.

The biggest risk is taking that insurance company’s position on your bodily injury as the final word on your case.

When the carrier says, “The pedestrian caused this,” my job is to identify exactly what the insurer claims the pedestrian did wrong, determine what evidence actually bears on that allegation, and develop the factual and legal response available to challenge it when the evidence provides a basis to do so.

The insurance company can blame the pedestrian. It cannot establish contributory negligence merely by saying it happened.

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Why Does a Pedestrian Accident Become an Injury Insurance Dispute?

Because after the collision, the practical dispute frequently becomes whether the liability insurer will accept responsibility and pay compensation supported by the evidence.

A Baltimore pedestrian accident claim typically begins with two people:

Driver → Pedestrian

The injury claim adds another participant:

Driver → Pedestrian → Liability Insurance Company

And once the insurer disputes responsibility, the practical sequence becomes:

Pedestrian Collision → Injury → Medical Evidence → Insurance Resistance → Evidence → Negotiation or Litigation → Resolution

The insurance company may accept that its insured struck the pedestrian.

It may accept that the pedestrian was seriously injured.

It may even accept that its insured made a mistake.

But in Maryland, the carrier may still contend:

“The pedestrian contributed to the collision.”

That can become a potentially case-ending form of responsibility resistance because Maryland continues to apply contributory negligence in ordinary negligence claims.

The central question is therefore not simply:

Did the driver hit the pedestrian?

It may become:

Can the defense establish that the pedestrian also acted negligently and that the pedestrian’s conduct contributed to causing the injury?

That is a very different fight. This is the core battle waged by Baltimore injury insurance dispute attorneys in litigated cases:

Making the insurance company prove the defenses it used to deny the claim in court.

When those insurer defenses fail

Plaintiff prevails

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Who Is the Practical Adversary in a Pedestrian Injury Claim?

The driver may be the allegedly negligent person and the legal defendant. The liability insurance company is ordinarily the practical adverse decision-maker during the injury claim.

This distinction matters.

The driver who struck the pedestrian ordinarily does not personally decide:

• whether the pedestrian had the right of way;
• whether the pedestrian crossed at the proper location;
• whether the pedestrian entered against a signal;
• whether the pedestrian stepped suddenly into traffic;
• whether the pedestrian was sufficiently visible;
• whether the pedestrian should have seen the vehicle;
• whether the pedestrian was distracted;
• whether the pedestrian could have avoided the collision;
• whether surveillance footage supports the driver’s account;
• whether contributory negligence will be asserted;
• what settlement authority will be extended; or
• whether the claim will be defended through litigation.

Those issues generally become part of the insurer’s investigation and defense of the injury claim.

If litigation becomes necessary, the driver or other legally responsible person may be named as the defendant. Understanding who you actually sue in a Baltimore pedestrian case is is often much less than important than understanding who is controlling resistance to payment.

The insurance company nevertheless may hire the defense lawyers, retain experts, participate in evaluating the evidence, control settlement authority within the applicable insurance relationship, and fund a covered settlement or judgment.

That is the practical structure of the dispute.

The pedestrian was hit by a vehicle. The fight over compensation is ordinarily with the insurance company standing behind the driver.

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Why Is the Insurance Company Blaming the Pedestrian?

Because pedestrian conduct can provide the defense with a contributory-negligence theory capable of barring recovery.

Pedestrian collisions create numerous factual questions that a carrier may investigate.

The insurer may argue that the pedestrian:

• crossed outside a marked or unmarked crosswalk;
• entered the roadway against a pedestrian signal;
• suddenly left the curb or another place of safety;
• failed to look for approaching traffic;
• saw an approaching vehicle but misjudged its distance or speed;
• was distracted by a telephone or another activity;
• entered from between parked vehicles;
• was difficult to see because of lighting, weather, clothing, roadway conditions, or obstructions;
• walked in the roadway when another route was available;
• failed to react to an approaching vehicle;
• continued moving despite an observable danger; or
• otherwise failed to use reasonable care.

Some of those arguments may be supported by the evidence.

Some may not.

Some may take a true fact and extend it too far.

For example:

The pedestrian crossed outside a marked crosswalk.

That fact may matter.

It does not, standing alone, answer every question about negligence, causation, the driver’s conduct, visibility, speed, lookout, or whether the pedestrian’s conduct legally contributed to the collision.

The analysis has to continue.

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What Is the Insurance Company Actually Arguing?

The critical point is that each statement contains a factual proposition that can be tested.

“The pedestrian caused the accident” is a conclusion.

The useful questions are:

Where was the pedestrian?

Where was the vehicle?

What signal controlled each of them?

What could each person actually see?

How fast was the vehicle moving?

When did the danger become apparent?

How much time existed to react?

What does the objective evidence show?

That is where the insurance dispute moves from accusation to analysis.

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Does a Pedestrian Outside a Crosswalk Automatically Lose a Maryland Injury Claim?

No. Crossing outside a crosswalk may materially affect the right-of-way analysis and may provide evidence supporting a contributory-negligence defense, but the location alone does not automatically decide every pedestrian injury claim.

Maryland law imposes different duties depending on where and how a pedestrian crosses.

A pedestrian crossing outside a marked crosswalk or an unmarked crosswalk at an intersection generally must yield to approaching vehicles.

That matters.

But the complete collision still has to be analyzed.

Questions may include:

• how far away the vehicle was when the pedestrian began crossing;
• the speed of the vehicle;
• whether the driver maintained a reasonable lookout;
• whether the pedestrian was visible;
• whether the driver had time to slow, brake, or steer;
• whether the pedestrian stopped or changed direction;
• whether another vehicle obstructed visibility;
• whether the driver was turning;
• whether the driver was distracted; and
• whether the pedestrian’s conduct actually contributed to causing the collision.

The insurance company may begin its analysis with:

“Not in the crosswalk.”

The legal and evidentiary analysis cannot necessarily end there.

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Does Being in a Crosswalk Automatically Win the Case?

No. A crosswalk can provide important right-of-way protections, but being in a crosswalk does not relieve a pedestrian from every obligation to exercise reasonable care.

Maryland law requires drivers to stop for pedestrians in specified crosswalk circumstances.

It also prohibits a pedestrian from suddenly leaving a curb or other place of safety and entering the path of a vehicle so close that the driver cannot yield.

So the correct analysis is not:

Crosswalk = pedestrian automatically wins

or

Outside crosswalk = pedestrian automatically loses

The better analysis is:

Location + signal + movement + visibility + speed + lookout + timing + causation + evidence

That is exactly why pedestrian cases are fertile ground for insurance resistance.

A single label does not necessarily reconstruct the collision.

This is one variation of a broader responsibility dispute in which the insurance company says the injured person caused the accident. In a pedestrian case, however, crossing rules, visibility, signal timing, movement, and reaction opportunity can make the evidentiary analysis substantially different.

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What If the Insurance Company Says I Stepped Out in Front of the Car?

That is a factual allegation that should be reconstructed, not simply accepted.

“Stepped out” is one of the most consequential phrases that can appear in a pedestrian claim file.

But it can describe very different events.

Consider the difference between:

Pedestrian enters roadway one second before impact.

and:

Pedestrian has already crossed a lane and is visible in the roadway for several seconds before impact.

Those are not the same collision.

The analysis may require determining:

• when the pedestrian entered the roadway;
• the pedestrian’s walking speed;
• where impact occurred;
• the vehicle’s speed;
• whether braking occurred;
• where the driver was looking;
• whether the driver was turning;
• whether parked vehicles obstructed sight lines;
• the distance between pedestrian and vehicle when danger first became apparent; and
• whether available video supports either account.

Words matter.

Timing matters more.

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What Evidence Matters in a Pedestrian Injury Insurance Dispute?

The most valuable evidence is evidence that reconstructs where the pedestrian and vehicle were, what each could perceive, and how much time existed before impact.

Depending on the case, that may include:

• surveillance video from businesses, residences, transit facilities, garages, or public buildings;
• dash-camera footage;
• police body-camera footage;
• photographs of the scene;
• photographs showing crosswalk markings and traffic controls;
• photographs taken under similar lighting conditions;
• eyewitness testimony;
• traffic-signal information where relevant and obtainable;
• 911 and emergency-response records;
• vehicle damage;
• impact location;
• skid or braking evidence;
• event-data information when available and relevant;
• vehicle telemetry or other digital information when legitimately available;
• pedestrian and driver statements;
• roadway measurements;
• parked-vehicle locations;
• streetlight locations;
• construction or temporary traffic-control conditions;
• weather information;
• cellular-device evidence when distraction is legitimately disputed;
• medical records documenting the mechanism and immediate injuries; and
• accident-reconstruction analysis when justified by the seriousness and complexity of the claim.

Pedestrian cases can be unusually dependent on transient evidence.

The pedestrian is not protected by a steel vehicle.

The physical injuries may be severe, while the actual collision sequence lasts only seconds.

A nearby camera may therefore become more important than twenty later descriptions of what someone believes happened.

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Why Can Surveillance Video Be So Important?

Because pedestrian fault disputes often turn on seconds, feet, movement and visibility.

A surveillance camera may show:

• when the pedestrian entered the roadway;
• how long the pedestrian was visible;
• the pedestrian’s speed and direction;
• whether the pedestrian stopped;
• whether the vehicle slowed;
• whether the driver turned;
• traffic in adjacent lanes;
• whether another vehicle had stopped;
• roadway obstructions;
• approximate timing; and
• whether either party’s later description is consistent with the recorded sequence.

But video can disappear.

Businesses and private camera systems may routinely overwrite footage.

The longer the delay, the greater the possibility that useful material is no longer available through ordinary retention.

This is legitimate timing—not manufactured urgency.

When fault is likely to become the insurance company’s defense, evidence capable of reconstructing fault deserves early attention.

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How Do I Analyze an Insurance Company’s Pedestrian-Fault Defense?

Step 1 — Identify the Exact Allegation

Do not stop at:

“The pedestrian was at fault.”

Find the specific theory.

Was the pedestrian allegedly:

• outside the crosswalk;
• against the signal;
• inattentive;
• suddenly entering the road;
• difficult to see;
• failing to yield;
• failing to look;
• failing to avoid the vehicle; or
• doing something else?

The defense determines the investigation.

Step 2 — Determine the Actual Crossing Rules

Where did the crossing occur?

Was it a marked crosswalk?

An unmarked crosswalk at an intersection?

Between intersections?

Was a pedestrian signal operating?

Was the vehicle turning?

The applicable duties cannot be analyzed accurately without first establishing the physical location and traffic-control setting.

Step 3 — Reconstruct the Pedestrian’s Movement

Determine:

• where the pedestrian began;
• direction of travel;
• distance traveled;
• approximate walking or running speed;
• whether the pedestrian stopped;
• whether direction changed; and
• location at impact.

Step 4 — Reconstruct the Driver’s Movement

The insurer may focus heavily on the pedestrian.

I also want to know what the driver was doing.

That may include:

• vehicle speed;
• lane;
• turning movement;
• braking;
• steering;
• traffic signal;
• line of sight;
• distraction;
• position before impact; and
• opportunity to perceive the pedestrian.

Step 5 — Determine What Each Person Could Actually See

Visibility cannot be evaluated in the abstract.

It may depend upon:

• parked vehicles;
• buses;
• other traffic;
• buildings;
• trees;
• construction;
• darkness;
• artificial lighting;
• weather;
• headlights;
• roadway grade;
• turns;
• intersections; and
• the relative positions of the vehicle and pedestrian.

Step 6 — Match the Evidence to the Insurance Company’s Theory

If the carrier says the pedestrian suddenly entered the roadway, timing evidence matters.

If the carrier says the pedestrian could not be seen, sight-line and lighting evidence matter.

If the carrier says the pedestrian entered against a signal, signal sequence and video matter.

If the carrier says the pedestrian ignored an approaching vehicle, speed, distance and visibility matter.

The particular offense depends on the particular resistance.

Step 7 — Evaluate Contributory Negligence

The fact that the driver may have been negligent does not automatically dispose of the pedestrian-fault issue.

The question is whether the defense can establish legally sufficient negligence by the pedestrian that contributed to causing the injury.

An allegation is not enough.

Evidence matters.

Step 8 — Evaluate Whether Litigation Is Warranted

Some disputed pedestrian claims can be resolved after additional evidence is developed and presented.

Others cannot.

If the liability carrier maintains a contributory-negligence denial and the investigation establishes a good-faith factual and legal basis to proceed, litigation can move the disputed claim into a process where the defense can be tested.

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What If the Driver Was Negligent but the Insurance Company Says I Was Also Negligent?

That is precisely where Maryland contributory negligence becomes dangerous.

The carrier does not necessarily have to take the position:

“Our driver did absolutely nothing wrong.”

Instead, it may argue:

“Even if our driver was negligent, the pedestrian also contributed.”

That changes the dispute.

Imagine a pedestrian is struck by a turning vehicle.

The carrier might acknowledge that the driver should have been more attentive.

But it may simultaneously contend that the pedestrian:

• entered late in the signal cycle;
• was looking at a telephone;
• moved unexpectedly;
• failed to look for the turning vehicle; or
• should have perceived the vehicle before impact.

The insurer is then attempting to transform a driver-negligence case into a contributory-negligence case.

That is why the pedestrian’s conduct cannot be treated as a minor side issue in a Maryland injury claim.

It can become the entire responsibility dispute.

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Is the Insurance Company’s Pedestrian-Fault Position the Law of the Case?

No. The adjuster can determine the carrier’s position and what the insurance company will voluntarily pay. The adjuster cannot make disputed facts legally conclusive merely by putting a conclusion in the claim file.

The progression can happen quickly:

Insurance company:
“The pedestrian crossed improperly.”

Then:

Claim file:
“Pedestrian contributory negligence.”

Then:

Settlement position:
“Liability denied.”

An analytical step can disappear:

What evidence actually establishes the pedestrian’s negligence?

That question should become more important, not less important, once the carrier denies liability.

An insurance claim position is consequential. It is not an adjudication. But it can be overturned through litigation.

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Who Has to Prove Contributory Negligence If the Case Goes to Court?

Contributory negligence is an affirmative defense. In litigation, the defendant bears the applicable burden of producing sufficient evidence to support that defense.

That distinction is critical.

During the insurance process, an adjuster can simply state:

“We believe the pedestrian contributed to the collision.”

If a viable claim proceeds into litigation and the defense continues to rely on contributory negligence, the defense must support its position with evidence.

The litigation may examine:

• witness testimony;
• surveillance footage;
• driver testimony;
• pedestrian testimony;
• signal evidence;
• scene photographs;
• roadway measurements;
• electronic evidence;
• reconstruction opinions where appropriate; and
• other admissible evidence.

If contributory negligence is not established, that particular defense fails.

That does not automatically establish the entire plaintiff’s case.

The pedestrian still must establish the underlying negligence claim, causation, and recoverable damages.

But the insurer’s assertion does not become a proven defense merely because it was asserted early or repeated often.

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What If the Pedestrian Made a Mistake?

A mistake should be analyzed, not automatically converted into a complete defense.

Suppose the pedestrian crossed outside the preferred crossing location.

The next questions remain:

Was a vehicle already approaching?

How far away was it?

How fast was it traveling?

Was the pedestrian visible?

How long was the pedestrian in the roadway?

Did the driver brake?

Was the driver looking?

Did the pedestrian’s crossing decision actually contribute to causing the impact?

Or consider a pedestrian who looked left and right but did not see a turning vehicle.

The issue is not simply:

“The pedestrian failed to see the car.”

The analysis may include whether the vehicle was visible at the relevant moment, when it began turning, how quickly it moved, whether another vehicle obstructed the view, and what reasonable opportunity the pedestrian had to react.

Fault analysis requires chronology.

Not hindsight.

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Can Last Clear Chance Matter in a Pedestrian Collision?

Potentially, but only in the narrow circumstances in which Maryland’s last-clear-chance doctrine is supported by the collision sequence.

Pedestrian cases sometimes present highly specific timing questions.

These cases often highlight the intersection between Maryland’s contributory negligence issues and the last clear chance doctrine. Even when earlier pedestrian conduct creates a contributory-negligence issue, it may be necessary to examine whether the defendant later had a fresh and meaningful opportunity to avoid the collision.

That inquiry may depend upon:

• when the pedestrian became visible;
• the driver’s distance from the pedestrian;
• vehicle speed;
• braking distance;
• reaction opportunity;
• steering options;
• roadway conditions; and
• the precise sequence of negligence.

Last clear chance should not be treated as a universal escape from contributory negligence.

It is a narrow doctrine.

But when the evidence supports the issue, it deserves analysis rather than being overlooked because the insurer has already labeled the pedestrian negligent.

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What Happens If the Insurance Company Refuses to Change Its Position?

A supported pedestrian claim does not necessarily end because voluntary insurance negotiations end.

Before litigation is initiated, I evaluate:

• how the collision occurred;
• the insurer’s exact fault theory;
• evidence supporting the pedestrian;
• evidence supporting the defense;
• available video;
• witnesses;
• roadway and signal evidence;
• contributory-negligence exposure;
• medical causation;
• damages;
• available insurance coverage;
• litigation expense;
• expert needs; and
• whether there is a good-faith factual and legal basis to proceed.

When there is, litigation may be initiated against the appropriate responsible party.

The process can include:

Pleadings → Discovery → Documents → Depositions → Expert Analysis → Motions → Mediation → Trial Preparation → Settlement or Adjudication

The driver’s name may appear in the caption.

The insurance dispute does not disappear.

The carrier may continue to finance and direct the defense and evaluate settlement.

But something important changes:

The insurance company no longer has unilateral control over how the disputed facts can be tested.

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Why Can Litigation Change a Pedestrian-Fault Dispute?

Because litigation can develop evidence that ordinary claim negotiation cannot compel.

Before litigation, the carrier may possess:

• its insured’s statement;
• the police report;
• photographs;
• selected witness information; and
• its own interpretation of the scene.

Litigation can create additional evidence through:

• written discovery;
• document requests;
• subpoenas;
• sworn depositions;
• expert discovery;
• preservation and production of electronic evidence;
• examination of conflicting testimony;
• motion practice; and
• trial preparation.

That does not guarantee that the insurer will change its position.

It does not guarantee settlement.

It does not guarantee recovery.

It changes the decision environment in which the pedestrian-fault defense is evaluated.

The claims process permits the carrier to state the defense.

Litigation creates the pathway through which the defense can be tested.

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What If the Pedestrian Suffered a Catastrophic Injury?

The severity of the injury does not eliminate a valid liability defense.

A pedestrian collision can produce:

• fractures;
• orthopedic surgery;
• traumatic brain injury;
• spinal injury;
• permanent impairment;
• scarring;
• loss of mobility;
• inability to return to work;
• future medical needs; and
• profound changes in daily life.

Those consequences matter enormously to damages.

But they do not answer the responsibility question.

If the liability insurer believes contributory negligence can bar recovery, it may resist addressing the full value of those damages until the responsibility dispute is resolved.

That produces an uncomfortable but important sequence:

Serious Injury ≠ Automatic Recovery

The first fight may still be:

Can the defense establish that the pedestrian contributed to causing the collision?

If that defense fails and the pedestrian proves the underlying negligence claim, the case can proceed to medical causation and damages.

That is why responsibility resistance sits at the front of the Injury Insurance Dispute framework.

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What Are the Risks of Waiting in a Disputed Pedestrian Claim?

The principal risk is loss of objective evidence capable of reconstructing the collision.

Potential problems include:

• surveillance video being overwritten;
• dash-camera material being lost;
• witnesses becoming difficult to locate;
• witness recollection becoming less precise;
• vehicles being repaired or disposed of;
• roadway markings changing;
• construction conditions disappearing;
• parked-vehicle patterns changing;
• traffic-control configurations changing; and
• digital evidence becoming unavailable through ordinary retention practices.

That does not mean litigation must be initiated immediately in every pedestrian case.

It means evidence should be evaluated while it still exists.

An insurer may develop its pedestrian-fault position very early.

The evidence needed to challenge that position may be disappearing at the same time.

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Do I Need an Injury Insurance Dispute Attorney If the Carrier Blames Me as a Pedestrian?

Not every pedestrian collision requires counsel or litigation. A serious injury claim facing a potentially complete contributory-negligence defense presents a different problem.

The analysis should answer:

1. What exactly does the insurance company say the pedestrian did wrong?
2. Which Maryland pedestrian rule applies to the crossing?
3. Where exactly were the pedestrian and vehicle?
4. What did each person have the opportunity to see?
5. What objective evidence exists?
6. What evidence may disappear?
7. Can the defense establish negligent pedestrian conduct?
8. Did that conduct actually contribute to causing the collision?
9. What evidence establishes negligence by the driver?
10. Does another doctrine affect the liability analysis?
11. What injuries and damages can be proved?
12. What insurance coverage is available?
13. Can the dispute be resolved through negotiation?
14. Is there a good-faith basis to initiate litigation if it cannot?

For more than three decades, I have represented injured people in Maryland claims involving insurance companies.

My role is not to assume that every pedestrian is faultless or that every insurer position is wrong.

My role is to identify the insurance company’s position, determine what evidence supports or undermines it, develop the strategy available to challenge it, and—when there is a good-faith basis—initiate and conduct litigation against the appropriate responsible parties.

The insurance company understands how to build a pedestrian-fault defense. I understand how to analyze and challenge that resistance.

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Frequently Asked Questions About Pedestrian Fault and Maryland Injury Insurance Disputes

Can I recover if the insurance company says I caused my pedestrian accident?

Potentially. The carrier’s allegation does not establish contributory negligence. The pedestrian’s conduct, the driver’s conduct, crossing location, signals, visibility, timing, causation, and available evidence must be evaluated.

Do I automatically lose if I crossed outside a crosswalk?

No. Crossing outside a crosswalk can materially affect the pedestrian’s right-of-way obligations and may support a contributory-negligence argument, but the crossing location alone does not necessarily resolve the entire negligence and causation analysis.

Do I automatically win if I was in a crosswalk?

No. A pedestrian in a crosswalk may have significant right-of-way protections, but the complete facts still matter. Pedestrian movement, visibility, timing, traffic controls, and whether the pedestrian exercised reasonable care may still be examined.

What if the insurance company says I suddenly stepped into traffic?

The timing should be reconstructed. Video, witness testimony, vehicle speed, braking, distance, impact location, sight lines and pedestrian movement may show whether the entry was actually sudden and whether the driver had an opportunity to react.

Can the insurer blame me because the driver says he never saw me?

The driver’s statement is evidence, not necessarily the end of the visibility analysis. Scene photographs, lighting, video, vehicle position, sight lines, obstructions, speed and other evidence may help determine whether and when the pedestrian was visible.

Can a pedestrian be contributorily negligent while inside a crosswalk?

Potentially. Crosswalk status does not eliminate every duty of reasonable care. The complete circumstances and causal relationship between the pedestrian’s conduct and the collision must still be considered.

Who has to prove contributory negligence in court?

Contributory negligence is an affirmative defense. If the defense remains in litigation, the defendant bears the applicable burden of producing evidence supporting it. The plaintiff separately remains responsible for proving the negligence claim, causation and damages.

Can surveillance footage change a denied pedestrian claim?

Yes. Video can materially affect disputes over crossing location, visibility, signal timing, pedestrian movement, vehicle speed, turning movements, braking and reaction opportunity.

Can last clear chance apply to a pedestrian accident?

In some cases. It is a narrow, fact-specific Maryland doctrine that may become relevant when the defendant had a later, fresh opportunity to avoid the collision after the claimant’s earlier negligence. Timing and reconstruction evidence are often critical.

What happens if the liability insurer refuses to pay because it blames the pedestrian?

The next issue is whether investigation establishes a good-faith factual and legal basis to challenge the defense. If so, the claim may move into litigation, where evidence can be developed through discovery, sworn testimony, expert analysis when appropriate, motions, mediation and trial preparation.

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Speak With a Baltimore Injury Insurance Dispute Attorney About a Disputed Pedestrian Claim

If a liability insurance company is blaming you for a pedestrian collision, I want to know exactly why.

Where were you crossing?

What signal was showing?

What did the driver say?

What does the video show?

What could each person see?

How fast was the vehicle moving?

What evidence supports the carrier’s contributory-negligence position?

What evidence contradicts it?

And what would the defense actually have to establish if the dispute were litigated?

No result, settlement, verdict, or recovery is guaranteed. Representation begins only after a matter is accepted and a written representation agreement is signed.