At Home, But Not Alone Brushstrokes #35

Part 1. Avoiding Medical History Pitfalls & Navigating Messy Testimony The fact is many people aren’t accurate when recalling details of past events, especially when it  comes to what happened at old doctor visits. Rarely do our clients flat out lie about their past  conditions, even though they often mess up when asked to talk about them. It is our job to help  clients avoid this medical history pitfall. When they do get tripped up, we must honestly show jurors that those mistakes were innocent, not sinister. 

Avoiding Medical History Pitfalls 

1. Always get a full set of the records and go over them with your client before allowing  them to be deposed. If the defense has not given you a full set of what they  subpoenaed, cancel the depo. Make sure the records they give you are bate-stamped so  nothing gets “left out”. Put excerpts of the records defense counsel will be trying to trip  your client up on in a binder and go over them thoroughly with your client.  

2. Explain to the client their past injury history will not hurt them unless they deny it. You  will stand by them, so long as they tell the truth. Then, model for them how the defense  will use any failure to disclose against them to unfairly devastate their case. The best  way to do this is to lay out what is coming in depo, then describe a shocking, extreme mock cross-examination. Here is an example of such a no-holds-barred discussion: 

They will ask you about past pain in your neck/back (or other relevant body part),  including any medical visits involving those body parts. They will not limit it to pain as  bad as was caused by this incident. They will intentionally ask questions in a broad, all inclusive way. Their questions will include pain that went away after treatment or even  went away on its own. None of that past pain or accidents will hurt your case, so long as  you tell them about it. There is zero chance that they won’t find out about it. 

If you don’t tell them about it, the defense lawyer will have to suppress a laugh about  how he or she outsmarted you. The insurance adjuster will pop champaign and celebrate  how much money you just saved them by getting tripped up on questions about past pain.  

On the other hand, if you tell them about it all and don’t sugarcoat it, they will be  miserable. The defense lawyer will feel like a failure and have to call the insurance  adjuster to report how you were too smart to be tricked into playing games with the truth and how they will now have to pay you what they owe on your claim. They will be  bitterly disappointed that they can’t get away with the “dummies discount” this time,  the one they force on fools who try to hide past pain or accidents. 

You decide. Do you want to get the best of them by telling the truth, the whole truth and  nothing but the truth; or do you want them to mock you for being stupid enough to try  to hide something that can’t be hidden? Do you want them to have to pay you full price or peanuts?

If you choose to play hide and seek, here is how they will use it against you at trial. You  will be in a courtroom, sitting in the witness box, with the jury staring at you and the  judge in a black robe watching your every move. The defense lawyer will put up your  medical record on a big tv screen and ask you question like this: 

Two years before this crash you had another accident and went to a chiropractor. You  told the chiropractor your pain was an 8 – 10, with 10 being the worst pain imaginable.  In other words, a 10 would be like a serial killer got ahold of you and was torturing you.  You told the chiropractor your pain was just two notches down from that kind of pain!  You didn’t tell them that once, you told that on almost every visit. We’re not talking  about a few visits, were talking about twenty visits. We’re not talking about a few weeks of grueling pain; we’re talking about more than four months of it? That’s what it says,  right? So, you admit you certainly had back pain before this fall? After showing you the  records and asking the powerful setup questions, with all eyes on you in the courtroom,  you will give the only answer you can give, “Yes, I had back pain in the past”. 

If you give a different answer in your upcoming depo, here is what they will do to you.  They will pull out a transcript of the deposition that will have their exact questions and  your exact answers typed up by the court reporter. They will say, do you recall we took  

your deposition on June 1 of this year, it was only two years after that long, unbearable  ordeal? Do you recall the following questions and answers in your sworn testimony: We asked, “Have you had any past accidents or times where your back hurt at all before this  fall?” Under oath, your answer was, “No.” Your answer wasn’t “yes, I had this terrible pain that lasted for many months and forced me to seek a bunch of medical care”. Your  answer was “no”, I have not had back pain in the past, period. Before giving that  answer, you swore to tell the truth. You didn’t swear to the devil, you swore to tell the truth, the whole truth and nothing but the truth, so help me God. (I realize this  description is cringeworthy, that is the point, you want to shock your client into  appreciating the gravity of your warnings. If you feel it goes too far, tone it down; just don’t make it too tame.) 

After taking your client through this dramatization of what’s to come if they conceal past  pain or accidents, ask your client, do you want to go through that public humiliation? If  not, don’t give the kind of answer that will subject you to it. Now that you understand  how it will play out if you don’t lay it all out, let’s talk about how to avoid such a  nightmare and help yourself get full justice in the process. 

3. Bring the same excerpts of medical records that you covered with your client in depo  prep to the deposition. Hand them out at the start of the depo (one for defense counsel,  one for the court reporter to attach, one for your client). Put it on the record that these  are all the records gathered by both sides of past medical treatment or complaints  regarding the injured body part. Ask the defense counsel to confirm those are all of the  records on that topic. If they refuse, you will have made a record that they aren’t 

seeking information, they are trying to set your client up to make false accusations of concealment. When they start asking your client about past problems with the relevant body part, have your client refer to the excerpt binder. If defense counsel objects and  insists your client answer based purely on memory, you can clarify any memory lapses  by asking questions at the end of the depo. Have your client refer to the binder which  defense counsel refused to let them look at earlier. Any effort to unfairly turn  incomplete answers into concealment will fail under those circumstances. 

By the way, this is the opposite of coaching your client to give false testimony. You are  encouraging them in the strongest of terms to tell the truth. How could that be criticized?