Valuable Information for Personal Injury Victims
Yesterday we learned a hard lesson. We learned that juries are apt to disbelieve a Plaintiff. If there is any disjunction or conflict in the medical records the Plaintiff will not be given any benefit of the doubt. You must be a perfect Plaintiff because any thing the defense finds can and will be used to call you a liar and discredit your case.
Let me explain: Recently we finished a 3-day trial. Our client was a middle-aged woman who sat in her car, stopped at a red light. The defendant, not paying attention, drove their small sporty car into the tailpipe of our client's mid-sized SUV. The damage totaled the defendant's car. The Plaintiff's SUV had almost no visible damages. (Let’s call that Strike One) The Plaintiff thought that she could handle the case alone and did not hire an attorney for some time after the accident. In that time she went to her own doctors and filled out her own medical information.
Our client proceeded to go back to her chiropractor because of the pain she had in her lower back. Prior to the accident, our client had a history of back pain but she was pain free for a year before the accident. Now, she was back in the chiropractor's office. The pain because so bad he referred her to a neurologist and then onto a neurosurgeon. The neurosurgeon said only surgery would help. Our client underwenta level one fusion of her spinal vertebrae. Unfortunately, in all the medical intake forms the client put down that she had no prior back problems (Let's call that Strike 2).
The client was not sales person. She was not able to articulate her pain to the jury. She was simply unable or unwilling to expound on her experience, to help the jury understand her pain. (Let's call that Strike 3).
We have worked on this case for a couple of years. We learned that the client was an honorable person. We learned she is a rule-follower by nature. We learned that she was in significant pain, terrorized by the thought of surgery. After the accident, the pain grew too great to bear. She explained the difference between the pains she had previously felt and the pain the accident caused in her back. What I failed to grasp was that it took time to feel for my client. It took time to believe her because she is a private person who does not naturally express her feelings.
Over time, an attorney builds a friendship with the client. You start to act and see the person as a friend who you are helping as much as a client who will pay your bills. I am often conflicted by that sensation because I want to do my best for the client and to do that I really need to feel passion about the case. At the same time, I must keep a professional distance so my perspective stays objective. Obviously, in this case I discounted how harshly the jury would treat her errors. I know my client was telling the truth. I watched her pain for years. However, the jury only saw her for three days. In those three days they heard me telling them she was a great person and worth a verdict. The jury also heard an accomplished defense attorney telling them she is a liar who is only here to defraud the system for a lottery verdict.
I still believe in the jury system, but I want to warn all the injured victims out there, don't make a mistake, not on your medical forms, not in your choice of doctors and not in your choice of attorneys. If you make any mistake, the insurance company's lawyer is going to make you out to be a liar and cheat. My best advice is to hire competent counsel early in the case so they can stop this from happening.
Mark Greenberg
