The actions you take or fail to take while your lawsuit is pending can greatly impact your case. A plaintiff’s case can be severely weakened prior to trial by his or her conduct. Such conduct could include any of the following:
- Conviction of a criminal offense that goes to your credibility and is, therefore, admissible at trial.
- Contact with witnesses for either side that has negative impact on potential testimony.
- Failure to keep proper documentation of injuries, medical bills, etc.
- Failure to mitigate damages.
- Failure to comply with physician’s orders and failure to keep appointments with physicians, physical therapists, and other medical treatment facilities.
- Conduct at work that affects potential employer testimony.
- Marital problems.
- Failure to keep your attorney advised of material changes such as employment, address, failure to keep appointments with your attorney during trial preparation, failure to follow advice with respect to deposition testimony and answers to interrogatories.
- Discussion of the facts in the case with other people in public places or with potential witnesses who may be brought in by the defense to testify against you.
The following story is one example from a prominent and successful defense attorney of the potential harm that can result if a client discusses his or her case with other people. The attorney was preparing for trial in a slip-and-fall case, scheduled to begin the next day. He received a telephone call from a woman who had overheard a conversation between the plaintiff and a friend in a crowded restaurant. They were discussing their depositions and expected testimony in a booth immediately next to the woman—who was the wife of a prominent town official. The plaintiff, in her earlier deposition, had apparently denied consumption of alcohol prior to her fall, but during the later conversation, admitted that she had been drinking prior to the incident. At trial, the woman was called as a rebuttal witness and disclosed the plaintiff’s inconsistent statement. The rebuttal testimony was clearly admissible under the rules of evidence. The rebuttal witness was unshakable in cross examination and the jury returned a defense verdict in less than 30 minutes. Clearly, the testimony of this witness devastated the case of the plaintiff.
Ways to avoid sabotaging your case
Experienced personal injury attorneys know that the more contact they have with a client, the less likely it is that a case will sabotaged by a client’s conduct. In order to minimize the chances of a case being undermined by a plaintiff’s conduct, a knowledgeable personal injury attorney will:
- have at least one conference with his or her client and their spouse prior to litigation in which the above potential problems are discussed;
- maintain contact with the client by telephone, letter, and in person;
- inform the client that he or she may be watched carefully during the litigation process;
- instruct the client to inform them of any changes, good and bad, in his or her life; and
- instruct the client to follow doctor’s orders carefully, keep appointments, make a serious attempt to recover from the injuries, and follow the personal injury attorney’s directions.
In short, the more contact you and your personal injury lawyer have, the better. You will feel just as well-informed and committed to the case as your attorney is. A personal injury attorney who notifies his or her client about trial a week or so before the court date only to learn of material changes that have occurred, which substantially affect the potential verdict in the case, has made a big mistake.
You should also be prepared for discovery
Any suit filed on your behalf by your attorney is going to generate one of two things—a settlement offer or an answer followed by discovery. And usually, it generates option number two – an answer followed by discovery from the defense. A knowledgeable personal injury attorney will send his or her client discovery requests before the suit is filed, and indicate that the defense is likely to send the client similar documents after an answer has been filed. The personal injury attorney will request that the client answer each and every question as carefully as possible and then discuss with the client the client’s answers.
Far too often inexperienced personal injury attorneys file suit, receive the discovery from defense counsel, beg for extensions, and then discover information that is very detrimental to the plaintiff’s case. Such potential problems include a pre-existing injury or condition, a prior insurance or workers’ compensation claim, a liability problem, a witness problem, or any number of negative factors that could damage or even destroy your case completely.
Many clients either neglect or intentionally refuse to disclose damaging information while the claim is in progress and before suit is filed. Then, after suit is filed and discovery begins, “ugly moles and warts” appear where there was once a picture without blemish. Defense attorneys know this and so do insurance carriers. They are well aware that either the personal injury attorney, or the client, or both, have failed to disclose damaging information during the processing of the claim that will benefit the defense. This is why insurance carriers often offer nominal settlements in cases with fairly high medical bills. They realize that with formal discovery, it is quite possible, in fact probable, that the defense attorney will find problems in current and past medical records. Insurance carriers and defense attorneys also know that plaintiffs, and sometimes their attorneys, will not send damaging medical information, such as a report indicating a prior condition or prior injury. Therefore, they will request all medical records from every source and every provider that has treated the plaintiff within a certain period, usually ten or more years.
Furthermore, with interrogatories, they will be able to ascertain just how strong your liability case is by asking your attorney to divulge witnesses, photographs, theories of liability, and other useful information that could assist the defense in damaging your case. The bottom line is this: Discovery by the defense almost always does something to damage or limit the success of your case.
There are several ways to a skillful plaintiffs’ attorney can make good use of the following discovery requests:
- Show discovery forms to the plaintiff during settlement discussions to let the plaintiff know just what kind of information the defense will be able to obtain during the discovery period and before trial.
- Send the discovery forms to the plaintiff while the case is being processed to make sure that the plaintiffs’ attorney has all of the information, including damaging information, necessary to evaluate and settle the case before he or she files suit.
- Send these to the plaintiff at the time of filing suit so that answers can be prepared during the appropriate time frame for responding to the defense’s discovery. Sending these to the plaintiff before the attorney receives them from defense counsel will avoid having to ask for extensions.
It is important to realize that defense lawyers expect that discovery requests be taken seriously. If a plaintiffs’ lawyer tries to “blow them off” with cute responses that are really non-responsive, he or she can count on a Motion to Compel with appropriate requests for sanctions. Judges almost always will require a valid response to virtually all of the interrogatories and production requests that are contained below. A plaintiff’s prior medical records are absolutely fertile and fair ground for discovery. It is virtually impossible to hide a previous injury, a pre-existing condition, or other damaging medical information. Defense attorneys have been through this situation hundreds of times and know what to do if they believe you are trying to hide information.
The following is an example of the consequences of failing to disclose a previous injury. Plaintiff had sustained a rotator cuff injury after falling from a porch of a home that he had rented with his family. His lawyer tried to settle the case with the insurance carrier, who offered only a nominal settlement. Suit was filed and defense counsel engaged in aggressive discovery, including depositions, interrogatories, and requests for production of documents that are similar to the ones included below. One of the primary questions from defense counsel was whether or not the plaintiff had ever sustained a prior injury or treatment to the subject shoulder. The plaintiff denied any former injury or treatment. It is important to note that both he and his wife were excellent record keepers and had excellent memories of events in their lives. His attorney believed his client completely when he told him that he had never had a prior injury to the subject shoulder.
The plaintiff’s attorney made it very clear to the plaintiff that even if he had a prior injury to such shoulder, the fall from the porch caused a new injury and would, therefore, be compensable. In other words, his attorney told him it would not benefit him to try to hide a prior shoulder injury. The plaintiff continued to deny any prior treatment or injury even though he had been an avid tennis player and an avid trombone player. Defense counsel went through the medical records very carefully and discovered eight physical therapy sessions for the same shoulder that had occurred five years prior to the subject injury. This information was devastating. The plaintiff had, both verbally and in his interrogatories, denied any prior treatment whatsoever. The result was that the case was settled for pennies on the dollar because the plaintiff’s attorney knew a Maine jury would doubt the testimony from this out-of-state plaintiff.
MORAL: Your attorney absolutely must know about the weaknesses in your own case before jumping blindly into litigation. The following discovery papers are likely to be sent to you, or ones similar to this, within weeks or even days after your attorney serves the defendant with your complaint. The motto: Be prepared.
Sample interrogatories from defense counsel in an automobile case
The following questions are sample interrogatories that a defense counsel would send to a plaintiff in an automobile case.
QUESTION #1: Please identify yourself by stating your full name, present address, present employment position, if any, date of birth, the full name and present address of your spouse, if you are married, your height and weight as of the time of the incident referred to in the Complaint, Social Security number, and the names and ages of your children, if any.
QUESTION #2: Please state the full names, current addresses, employment positions and employers of each and every person who, to your knowledge or to that of your agents, attorneys, or employees, has knowledge of any of the facts concerning the incident referred to in the Complaint. Identify all documents which relate to each of these persons and the incident.
QUESTION #3: State the full name, current address and employment position of each person who investigated on your behalf the matters which are the subject of this suit. Identify each and every document which relates in any way to this Interrogatory answer.
QUESTION #4: Set forth in full the substance of any admission by a party or by an alleged agent of a party, and include within your answer the name of the person making each such admission, the date and time of the admission, and the name and address of all persons present at the time of the admission. Identify each and every document which relates in any way to each such admission.
QUESTION #5: List the names, addresses, official titles, if any, home and work addresses and telephone numbers of all witnesses, including expert witnesses, who it is contemplated will be called upon to testify in support of your position in this action, indicating with respect to each the nature and substance of the testimony expected to be given and stating the relationship, if any, of the witness to you.
QUESTION #6: State whether you, your agents, or attorneys have ever seen or have knowledge of any photographs, videotapes, films, or movies of, or relating to, the incident. If so, state the full name, current address and employment position of each person now in possession of any such materials. Identify each and every document which relates to every single one of these materials, as well as the materials themselves.
QUESTION #7: Please itemize in complete and exhaustive detail each and every element of damage which you claim or contend is associated with the incident. Identify all documents presently in your possession, or of which you, your agents, servants, employees or attorneys are aware, which in any way substantiates these damages.
QUESTION #8: If you, or anyone on your behalf, has obtained any statements concerning the accident which is the subject matter of this lawsuit, describe separately each such statement by setting forth the name and address of the person who gave it, the name, address and employment position of the person who took it, the date it was taken, whether it was written or recorded, whether it was reduced to writing, whether it was signed and the present location of all notes, recordings, transcripts, or other writings of any kind pertaining to each statement.
QUESTION #9: If you ever prepared, submitted or made any written statements or reports describing the accident, please state the date of any such statement or report, the substance of the contents of any such written report, the person to whom the statement or report was made, the present custodian of the original of the statement and whether a copy of the statement or report is in your possession or custody.
QUESTION #10: If you have made an insurance claim or have been reimbursed by any insurer for any of the losses or damages claimed in this suit, state with respect to each such claim or reimbursement the name and address of the insurer, the policy number under which the claim or reimbursement was made, the nature of insurance coverage provided, the amount claimed, and the amount of each reimbursement made. Identify all documents which relate in any way to the claim or reimbursement.
QUESTION #11: If at the time of the occurrence which is the subject of this suit there was any policy of liability insurance affording coverage to you or the operator of the automobile which you occupied at the time of the occurrence, state with respect to each such policy the name and address of each named insured, the name and address of the insurer, the policy number, the limits of bodily injury and property damages liability protection, and the nature of each coverage defense, reservation of right and non waiver agreement, if any, that the insurer has asserted or entered into with respect to this occurrence.
QUESTION #12: If you claim to have sustained any loss of income as a result of the incident, state the full amount claimed to have been lost, the sources from which you would have received it, and the inclusive dates during which you lost it. Please also set forth in complete and exhaustive detail your analysis of how the loss was computed. Identify all documents which in any way relate to this claim.
QUESTION #13: State the full name and last known address of each of your employers during the ten-year period immediately preceding your answers to these Interrogatories and include within your answer the dates of your employment with each such employer and a description of the duties assumed and services rendered by you in connection with each such employment.
QUESTION #14: If you have applied for benefits of any kind to any state or federal agency, state the date of each such application, the complete name and address of the governmental office to which the application was directed, whether it was approved, the total amount paid, the period of time during which benefits were paid and/or the reasons for each such rejection and/or termination of benefits. Identify all documents which relate to such benefits.
QUESTION #15: If you have ever pleaded guilty to or been convicted of any crime that was punishable by death or imprisonment for one year or more or involved dishonesty or false statement within the past ten years, please state the nature of the offense, the date of false statement within the past ten years, and please state the nature of the offense, the date of your conviction, the county and state in which you were tried, and the sentence given to you.
QUESTION #16: State whether or not you were receiving unemployment benefits prior to your accident, and please state the amount of income derived from that source.
QUESTION #17: State whether or not you have been receiving unemployment benefits subsequent to the alleged accident, and please state the amount of income derived from that source.
QUESTION #18: Please state in complete and exhaustive detail your personal knowledge of how the accident, which is the subject of this lawsuit, took place, setting forth the events in the order in which they occurred.
QUESTION #19: Please describe in detail the movements of the vehicle in which you were riding immediately following the collision, including, but not limited to the path your vehicle took following the collision, the location of your vehicle when it finally came to a stop, the means by which your vehicle finally came to a stop and whether your vehicle forcibly contacted any objects following the collision.
QUESTION #20: Please describe in detail the movements of your body within the vehicle in which you were riding immediately following the impact, including but not limited to the path your body took through the interior of the vehicle, each and every part of your body that struck the interior of the vehicle and each and every part of the vehicle against which your body struck.
QUESTION #21: Please describe in detail the means by which you left the accident scene, and if you left with assistance, please indicate the name and address of each and every person, organization, and or ambulance service that gave you assistance.
QUESTION #22: State in detail the nature of the injuries you allege you suffered as a result of the incident referred to in the Complaint.
QUESTION #23: Please identify each and every physician, technician, physical therapist, hospital, laboratory, clinic or other medical person or facility by whom or at which you have been examined, tested or treated during the ten-year period immediately preceding the date of the incident. Include within your answer the inclusive dates during which each such exam, test or treatment occurred, together with the name, type and/or description of each such examination, test or treatment and the reason therefor.
QUESTION #24: Please identify each and every physician, technician, physical therapist, hospital, laboratory, clinic or other medical person or facility by whom or at which you have been examined, tested or treated from the date of the incident up to and including the present date; and include within your answer the dates of each exam, test or treatment, and the name, type and/or description of each such examination, test or treatment, and the reason therefor.
QUESTION #25: If you have had physical complaints of any kind since the incident, set forth in complete and exhaustive detail the nature of each such complaint, including the dates and times of each complaint; and describe the frequency, intensity and duration of each complaint.
QUESTION #26: For every pharmacy that filled prescriptions issued to you or on your behalf in the five years immediately preceding the incident of which you complain, identify the name and address of the pharmacy, the name and address of the prescribing physician, and of the complaint or condition you understand the prescription medication or device addressed.
QUESTION #27: If you have been or expect to be a party to any other suit, claim or workers’ compensation proceeding relating to any personal injury, occupational disease or physical disability sustained by you, including the injury of which you presently complain, describe completely the nature of each such suit, claim or proceeding, including the forum, the parties, the date of filing, a brief description of the injury, disease or disability forming the basis for the claim, and the disposition of the suit or claim.
QUESTION #28: Identify each year in the five years immediately prior to the event which is the subject of this litigation, in which you did not file a federal income tax return, and for each year identified, state the reason for your failure to file.
QUESTION #29: For every accident in which you were ever involved, including but not limited to motor vehicle accidents, identify the date, place, a description of the damage to both property and person, the names and addresses of persons involved, and a summary of what happened.
QUESTION #30: With respect to the damage to the vehicle you were occupying, state in detail the part or parts damaged, the extent of damage and the cost of repair.
QUESTION #31: For every crime for which you pled guilty or were convicted which was either 1) punishable by death or imprisonment for one year or more under the law under which you were convicted, or 2) involved dishonesty or false statement, regardless of punishment, identify the date of conviction, the court, the sentence, and the date of your discharge from the sentence, if that has occurred.
QUESTION #32: If you claim to have sustained any permanent impairment to your person as a result of the incident, describe each part of your person that you claim is permanently impaired by the incident, stating the degree of each impairment. Identify and state a summary of the qualifications of each medical expert whom you plan and/or intend to present to testify at trial concerning your claim for permanent impairment. For each such expert witness, state the substance of all facts and opinions to which the witness is expected to testify and a summary of the grounds for each opinion he will give.
QUESTION #33: If you were at any time confined as a result of the injuries sustained in this accident, please describe in detail the period of time you were confined in any hospital, the period of time you were confined to bed and the period of time you were confined to your home.
QUESTION #34: Please describe in complete and exhaustive detail your symptoms at the present time, including the sites and intensities of any pain.
QUESTION #35: Please describe in complete and exhaustive detail any and all injuries, painful symptoms, and/or congenital defects you had suffered before the incident, and further indicate how recently before the incident you had been treated for such difficulties, by date.
QUESTION #36: Please describe in detail each and every occupational and a vocational activity which you were able to perform before the incident that you were unable to perform to any extent as a consequence of the incident.
QUESTION #37: If you claim or contend that you are entitled to damages for pain and suffering, please list in precise detail each and every occurrence, symptom or other factor which in any way supports this claim or contention.
Sample request for production of documents from defense counsel in an automobile case
The following list is an example of the documents you may be asked to produce as part of the defense’s discovery.
REQUEST #1: A certified, legible copy of any memoranda, notes, correspondence, reports including pharmacology reports, or other documents of any kind, of any hospital, laboratory, clinic or other medical or health facility, by or at which the Plaintiff has been examined, treated, or tested within the last ten years.
REQUEST #2: Legible copies of any and all reports, correspondence, memoranda, notes including office notes or other documents of any kind whatsoever reflecting the examination, testing, or treatment provided by any physician, technician, physical therapist, or other practitioner of the healing arts, or psychologist, psychiatrist, marriage and/or sex counselor, or other treating individual, relative to the Plaintiff within ten years prior to this request.
REQUEST #3: Legible copies of any report, list, memoranda, graph, correspondence or other documents of any kind, reflecting in any way test or treatment or examination performed on or with the Plaintiff, within the ten years prior to the date of this request.
REQUEST #4: Each and every statement, bill, check or other document of any kind reflecting any medical expenses on the part of the Plaintiff, related to the occurrence of which the Plaintiff complained in this action.
REQUEST #5: Each and every document of any kind which relates in any way to the damages which are not of a medical nature which the Plaintiff claims to have suffered or incurred in relation to the subject matter of this action.
REQUEST #6: All statements, recorded or written, by any witness or party.
REQUEST #7: Every report or description of the occurrence which is the subject of your Complaint, including reports to the State Division of Motor Vehicles, any police agency, and your insurer.
REQUEST #8: Any and all notes, memoranda, correspondence, reports, or other documents of any kind, reflecting treatment, examination, testing, or consultation for each and every psychologist, psychiatrist, psychotherapist, or similar health professional, relating to injuries allegedly sustained by the Plaintiff relative to the occurrence which forms the subject matter of this suit.
REQUEST #9: Any and all tax returns filed in any state, local or federal taxing authority filed by or on behalf of the Plaintiff for the past five years, together with any and all W2 forms or similar statements of earnings of the Plaintiff for the past five years.
REQUEST #10: Plaintiff’s employment records, including but not limited to the personnel file, application to, evidence of wages or income paid by, resignation, notice of termination, correspondence to and from and all other records kept by each of the Plaintiff and Plaintiff’s employers in the five years immediately preceding the date of the incident.
REQUEST #11: All records verifying Plaintiff’s claim for lost income.
REQUEST #12: A copy of each and every photograph, sketch, videotape, chart or diagram which relates in any way to the claim which is the subject matter of this action.
REQUEST #13: Each and every document in the nature of a report or otherwise reflecting any of the Plaintiff’s experts’ opinions concerning the subject matter of this action.
REQUEST #14: Copies of all workers compensation pleadings, transcripts or other documents relating to the injury which is the subject of this lawsuit.
REQUEST #15: Copies of all employment records including but not limited to personnel files, time cards, and medical records for the past ten years prior to the date of this request.
REQUEST #16: Copies of all pleadings from any civil lawsuit in which you were a plaintiff in the past ten years.
REQUEST #17: All repair bills, estimates of repair and photographs of the physical damage you claim was caused to any motor vehicle in the occurrence which is the subject of your Complaint.
REQUEST #18: Copies of your cellular phone bill for the month in which the incident that is the subject of your Complaint occurred.