At Home, But Not Alone Brushstrokes #36

Part 2 - Navigating Messy Testimony  

If you follow the steps I laid out in #35, there will be very few inconsistencies between the  medical records and your clients’ depos. For those that occasionally slip through the cracks or  already exist from before implementing these preventative measures, here are steps to  honestly show the jury those lapses were innocent mistakes, not sinister coverups.  

Memories can fade 

Sample voir dire analog: 

I want to ask you about the precision of your memory as to past events. Some lucky people have  near perfect memories, almost photographic. They can recall details like it was yesterday. For  most of us memories tend to fade over time on the details of past events.  

For example, one of my partners and I were in trial together when 9/11 occurred. You would  think the details of that horrible day would stick since it was so memorable, but it turned out  that wasn’t so. Recently, we were talking about the day and had completely different recall as  to how and when we first heard of the attacks. He was sure we found out together while  watching tv in a restaurant on our lunch break. I was equally sure we found out together, but it  was when the judge told us in the courtroom before lunch. We didn’t watch those sickening  images on tv until after the judge told us about the terrorist attacks.  

We both were telling our own truths based on our own memories. After going back and forth,  we figured out we were both part right and part wrong. The part we were both wrong about  was that we were together when we first learned of the attacks. My partner actually went to  lunch alone. He did find out about the attacks while watching tv at the restaurant. I stayed in  

the courtroom to work and had no idea what was going on outside those four walls. After lunch,  my partner walked back into the courtroom and, before he could tell me the news, our judge  came in to announce what had happened, which was the first I heard of it. The judge called a  recess for the rest of the day. Then, my partner and I walked across the street together to that  same restaurant and I finally saw the replays with my own eyes.  

As it turned out, I did hear it from the judge, but it wasn’t in the morning before lunch, it was  after lunch. My partner did learn of the attacks from the tv at lunch, but I wasn’t with him.  Obviously, neither of us have photographic memories as to the details of past experiences, even  stunning ones. 

How many of you have had experiences like that where parts of your recall were off about past  events? Were you trying to be misleading or was it an honest mistake? 

How many of you have that rare gift of near perfect memory of past experiences? Do you know  others that don’t share your unique abilities? If they make mistakes in retelling a story, do you  assume they’re telling it wrong on purpose, or doing their best to recall and making an honest  mistake?

The reason I ask is trials involve witnesses who have to recreate past events based on  recollections. For both sides, I want to make sure everyone recognizes that there is a difference  between unintentional mistakes and lies. Sometimes people do lie, but certainly every lapse in  memory isn’t so sinister.  

Fortunately, in some cases there are fixed facts that don’t fade to help jurors figure out what  happened, things like MRIs that record a clear and lasting picture. You’ll see we have them in  this case. 


As we talked about in jury selection, some people are better than others at recalling and  retelling past experiences. You will see Ms. Jones is someone who is not so good at it. The good  news is you will have something to base your decision on that is far better and far more reliable  than memories of past events. You will have MRIs that don’t fade with time. Those MRIs will  prove Ms. Jones did not have broken discs before this crash, they were broken as a result of this  crash.  


Another fair way to explain unintentional missteps in deposition or medical records is to explain  that peoples’ perspective of pain is all relative to their life experiences. Past pain may have felt  bad at the time because your client hadn’t yet experienced the kind of pain this new injury is  causing. Now that he knows real pain, the old pain pales in comparison. The best time to deal  with this change in perspective is in depo prep to avoid answers that can be exploited by the  defense, rather than after the fact. If you have to explain innocent mistakes in depo answers,  the truth often lies in explaining the honest difference in perspective based on new  experiences.  

Mixed Meanings 

Another legitimate explanation for answers that seem out of sync with the records is a  breakdown in communication. Questions or words can have different meanings to different  people. A client could tell an ER nurse that she has had pain in her back on and off in the past  couple of years, but it never lasted. The nurse could write down “chronic back pain”. You client  didn’t use the word “chronic”; she doesn’t even know what it means. It was an interpretation by the notetaker that makes it sound worse than what was actually communicated.  

The truth is most clients don’t recall the details of what was discussed in individual doctor visits  months or years ago. If that is true, they should say so. Don’t let the defense make it seem as if  your client has precise recall of what was said in each visit so they can run your client through  the ringer using the written words in those records, most of which are the doctor’s writing, not  your client’s. Your client can explain (assuming it’s true) they’re not saying the doctor made it  up, they’re just saying that’s not how they recall feeling in that timeframe. Then, you can  explain the concepts of mixed meanings, perspective and/or mistakes in medical records. 

Mistakes in Medical Records 

Computer-generated electronic records are notorious for mistakes. If you have a record that is  out of sync with the rest of the facts, don’t be held hostage by it. Most people understand  medical records can have unintentional inaccuracies. You can ask during jury selection, “How  many of you have seen medical records and noticed things that weren’t right, especially on  those electronic computer-generated forms?”  

Also, study the records for internal inconsistencies. I recently had to deal with a post-fall ER  record that had a computer readout with the work “negative” repeated after a series of  preprinted back examinations, including range of motion and tests for tenderness. Even the  defense’s handpicked neurosurgeon expert admitted our client suffered a painful back injury in  the fall. He said it was just a sprain/ strain, not a herniation, but still she had an injury that  would have hurt to push on or twist around. The treating neurosurgeon and subsequent MRIs  proved she had a bad herniation which certainly would have resulted in positive results if  tenderness and range of motion had actually been checked. Nonetheless, defense would  feature that entry to suggest our client couldn’t have hurt her back in the fall.  

Before the exam section, the history section of that same ER record said, “patient denies back  pain”. Initially this seemed like another hurdle. Then it dawned on me this entry actually helped  show the record was not reliable. In a busy ER, while dealing with a patient with multiple other  injuries (knee, wrist, and ankle), it is unlikely the ER doctor would waste time conducting a  detailed examination of the back after the patient allegedly denied hurting her back or having  any pain there. That internal inconsistency helped show the record didn’t add up with any of  the other evidence or with itself.  


Our job is to protect our clients from efforts by the defense to creating false impressions of any  kind, including from the medical records. We do that by mastering those records and discussing  them with our clients before their depo. Then we stand guard against any inconsistencies that  could result in an unjust result.