It takes a craftsman to build a house. Any fool can tear it down. The same concept is applicable in tort cases. It takes a craftsman to build a good case and insulate it from the insurance lawyer who will try and tear it down without proving anything. As a plaintiff, you must do more than just present your case. You must foresee the insurance lawyer's tricks, and head them off at the pass.
The defense wins most of their cases, not on the truth, but on innuendo. They try to infect your case with false insinuations. They have become very savvy at planting the seeds of doubt in your case, even in areas that should be uncontroverted. These seeds are poison to your case, and you must eliminate them. During a break in a past trial, I came up with a mantra to explain what an insurance lawyer does, which is "Confuse the Jury… Question Everything… and Prove Nothing."
In my first years as a trial lawyer, I would always try to explain away the innuendo by the insurance lawyer, but only long after they had sewn the seeds of doubt that had already begun to take hold and choke out the truth. And I always felt like I was making excuses for my client.
The insurance lawyers are always trying to attack your client's (and your own) credibility. They will use every tool at their disposal to attack you. However, you must understand that they will do this in a cowardly fashion, and never step forward and outright call your client a liar, a fraud, and/or a cheat. They will quietly infer these things. Over the years, I have found the best way to combat this is by calling it out the instant it begins to happen. I have a vision in my head with a big log right in the middle of a field. I look at every inference that is negative to my client as the lawyer (or his medical "expert") attempting to hide behind that log. It is our job as plaintiff's lawyers to flush them out and get their cowardly tails into the open for all to see.
Insurance lawyers will do this themselves, but most of the time they will hire "courtroom doctors" to do their dirty work. I recently had a deposition of a Defense Medical Examiner, or DMEI (I refuse to call it an Independent Medical Exam/ME, as the phrase is one lie per word!). I have changed the names as it is a pending case set for trial this August. My thoughts are in italics below. Here goes:
Cross Exam Mr. Griffith
Q: Doctor, I noted several times on direct you stated that the client has no permanent injury whatsoever. Did you see her last note just 3 months ago with her PCP, Dr. Jenkins, that she has ongoing complaints of neck pain/ now chronic?
A: Yes, I see that she said that.
Q: Was she lying when she said she had ongoing neck pain? (Get out behind that stinkin' log! I want the doctor to either call her a liar, or not, or to refuse to take a position. We win either way.)
A: I never said she was a liar. (He is evading the question. Exhaust!)
Q: Well, do you believe her when she told her doctor that she had ongoing neck pain?
A: It is not my job to believe her or not. I am simply reviewing the notes and giving an overall picture.
(Now, he has stepped in it. He has relied on past statements all through his report. First I need to make sure some rule applies to him… here goes)
Q: Doctor, you have given many opinions today regarding statements made in doctor's notes by the client. I am going to ask you once more and make it as simple as I can for you. You can answer it for this jury, or you can refuse to answer... I am fine either way. When she reported that she had ongoing neck pain ever since this wreck, do you have an opinion as to whether or not she did indeed have ongoing neck pain, which is now 2 years post the wreck?
A: If she said it, then she said it. (I think the jury can see what he is by now... I hope)
Q: Doctor is there a reason you do not want to answer this question?
A: I did answer it.
Q: Doctor, can you share with me and this jury every reason you think the plaintiff is lying or exaggerating when she says that she has ongoing neck pain, now 2 years continuously since this wreck we are here about?
A: I am not sure.
Q: Doctor, I note in your report you provided to the defense attorney that you noted back in
November 2018 that her pain had "improved." Did I get that right?
Q: You believed the notes where it says her pain has lessened, true?
A: I did note that in my report.
Q: Doctor, have you ever heard the term "Cherry Pickin'" ?
Of course, it helps when you do have a very credible plaintiff. I always constantly ask myself before trial, "If I am going to lose this case, how am I going to lose it?" Credibility of my client, and myself, is dear to me. If we have any fleas on our case (and there ALWAYS is) it must come from us first. If I don't have a credible client on a material issue, then perhaps I should not have taken the case. However, the defense bar will manufacture credibility issues and you must always be on guard for this and put things in their proper context.
When the defense uses this tactic, I always say in opening, "Ladies and Gentlemen, one of the things you will have to do in this case is determine if the plaintiff is a liar, a fraud, and a cheat. The defense has chosen to hire a doctor who says she is a liar. If you think she is, you should send us out of this courtroom and not give us one single dime. And I mean that. However, if you determine the plaintiff is being honest about how this wreck caused her pain and also believe her treating doctors who say this wreck caused these same injuries, then she is entitled to a fair verdict." Then sit back and enjoy watching the defense attorney try to squirm out of the position you have now put them in.
After all, it is the truth, and it is our job to use truth in our quest for justice. Remember… "You will never settle your case for what the jury might provide at trial." TRY YOUR CASES!!!