A trial is a search for the truth with the ultimate goal being the jury (in a jury trial) or the judge (in a bench trial) listening carefully to the evidence, weighing it, and correctly deciding which parties’ version of the truth is the correct one. Key to that determination is the credibility of the parties, their attorneys, and the witnesses called to testify.

While credibility is key in every lawsuit the credibility of the plaintiff in a personal injury lawsuit is most often attacked because the plaintiff has failed – whether intentionally or unintentionally – to disclose previous injury to the same body part for which he or she is seeking damages at trial, or fails to disclose a prior similar accident.  The result of this can be devastating to the plaintiff’s case at trial and result in no damages being awarded or substantially less damages than what was requested.  How does this happen?

Long before the case every gets to trial the defendant’s attorney will obtain the plaintiff’s medical records through the discovery process and scour those records looking for evidence of previous injuries or accidents which might account for the plaintiff’s complaints in the pending lawsuit. The defense attorney will also send written questions called “interrogatories” to the plaintiff asking about prior injuries or accidents. The interrogatories are answered under oath.  Once armed with the plaintiff’s sworn answers to interrogatories and prior medical records, the defense attorney will take the plaintiff’s deposition (i.e., sworn statement) and ask about prior accidents and injuries. The defense attorney may feign that he does not know about the prior injuries or accidents so as not to alert the plaintiff and his lawyer to any impropriety.

Many times, the accident or injury happened so long ago that the plaintiff does not remember the accident or the injuries he or she suffered and will deny they ever occurred. Note that this error may be compounded by the plaintiff if he or she denies in answers to interrogatories the prior accident or injury and repeats the denial at deposition. The denial of prior injury or accident is fodder for the defense attorney who packs this information away in his trial notebook with the intention of impeaching the plaintiff at trial with his or her failure to be candid.

A good lawyer will not allow his client to be ambushed at deposition or at trial. He needs to insist on candor and honesty from his client and delve into their medical history going back at least 10 years.  The lawyer should have received (and read) all prior medical records before he ever allows the client to be deposed or answer interrogatories. He must then counsel his client as to how those records may relate to or impact the client’s present claim.

The lawyer needs to particularly cautious if the client has undergone chiropractic care in the past. This is so, because typically the client sees the chiropractor for a specific problem such as “low back pain” or “neck pain.” It is well-known, however, that as part of their treatment, chiropractors’ modalities include treatment of the entire spine. Thus, in a deposition of the client, defense counsel (who has scrupulously read the chiropractor’s records) may ask the client if she’s ever had chiropractic care for neck problems.  The client, most often innocently, testifies that she went to the chiropractor only for low back pain, and denies that she’s ever had neck problems, unaware that the chiropractor’s records reflect treatment to the neck, mid-back and low back.  In the eyes of defense counsel, the client is lying. If the client’s lawyer hasn’t obtained and read the chiropractor’s records in advance of the deposition, he’s allowed his client to walk into a trap that will come back to bite he and his client at trial unless the discrepancy is corrected at the deposition or at trial before defense counsel gets to cross-examine the client.