Ways to Fight Against the "Subjective Injury" Defense

In a personal injury case, the defense will often attempt to attack my client's character, saying that they have suffered a "subjective injury only." In other words, my client may have been hurt in the accident, but the injury isn't as bad as my client is making out. This is something that I have dealt with repeatedly over the years as a personal injury trial attorney, and I have come up with a few ways to discredit the "subjective injury" defense.

How to Deal With an Insurance Lawyer Who Claims an Injury Is Subjective

First of all, I'm proud of all the clients I represent. I won't take a case if I feel someone is malingering or exaggerating their injuries. I get to know all of the details, using medical evidence and the positive aspects of a client's behavior during recovery to defend against any misleading statements the insurance lawyer may make.

Defense lawyers hesitate to directly call an injury victim a liar. Instead, they want to imply that she is dishonest, to build enough doubt in the court's minds to deny her fair compensation. Here are some ways I handle these accusations:

  • In a medical deposition. The insurance lawyer may ask the treating doctor misleading questions. For example, "Did the client TELL you she had headaches or memory loss?" If the doctor says yes, the lawyer may respond: "Well, you don't have any way to verify that, so it might not be true." The doctor has to agree since he can't medically prove those symptoms. I respond with questions that establish my client's credibility: "Have you known her to be reliable in the past?" Yes. "Does she keep her office visits?" Yes. "Do you regularly see patients who malinger or seek narcotics?" Yes. "Does she do that?" No, she was responsible and followed her treatment plan.
  • During redirect. In my examination, I present a clear black-and-white argument: either my client is a liar, a fraud, and a cheat, or she is an honest person. I may ask the doctor if the defense put forth any records that indicate that the victim is a liar, or if she was lying when she said the pain was getting better, or when she said she no longer needed pain medication.
  • Closing remarks. I often give the jury a simple choice: if they believe my client is a liar, she shouldn't get a dime. However, if they think my client isn't a fraud, and her injuries are real, they shouldn't let the insurance company prosper by calling her a liar and denying her the compensation they promised to provide.

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John Griffith
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Nashville Personal Injury Trial Attorney
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