From A Claimant's Guide to Understanding and Presenting Injury Damages: A Damages Expert's Perspective, Chapter 5
Honesty, Consistency, and Humility
Perceptions of your honesty, consistency, and humility are key to your damages claim allegations.
Whatever information you provide—whether related to your physical condition, psychological condition, medical history, earnings record, work history, or other complaint-related background—ensure it is, to the best of your ability, as accurate and complete as possible. If those evaluating your claim lose trust in you, they will look askance at the veracity of your claimed damages, regardless of your claim’s merits.
Do not guess or speculate when providing information, no matter how inconsequential you believe the topic. If uncertain when answering questions, couch your responses accordingly. For example, say: “To the best of my recollection . . . ” or “I don’t recall all of the details, but I do remember . . . ”
Also, do not tell half-truths. If, for example, your work history includes an involuntary job termination and you were in the process of searching for another job at the time because of a conflict with your supervisor, disclose all of the facts—in this case, the involuntary termination, the reasons for it (including any reason that exonerates you, such as a personality conflict with your former supervisor and/or what you believe to have been unfair performance standards), and the fact that you had been in the midst of a job search when your employment ended. Explain, when needed and without becoming defensive, important details not elicited from you but necessary to place proper perspective on topics under scrutiny.
It is always better to candidly and plainly deal with unpleasant or embarrassing life events when asked about them, rather than to mask, spin, or otherwise attempt to place these events in an undeserving neutral or positive light. Those disputing your claim will be mixing, matching, and carefully analyzing historical information about you with information emerging during the litigation discovery phase—such as surveillance of you, deposition testimony, expert witness assessments, and myriad documents from sources you may not even know exist.
From the Freedom of Information Act, subpoenas, the vast information available on the Internet, and simple nonrecorded investigative interviews—for example, of your neighbors, ex-spouses or ex-partners, and former supervisors and coworkers—lawyers commonly gather and analyze details of your life to verify representations you make, as well as to squelch and dispel your assertions.
Again, the litigation process is inherently adversarial. Lawyers opposing your claim will simultaneously evaluate and attempt to diminish your credibility. Those empowered to award you damages—such as insurance adjusters, judges, and juries—will do so based on their perceptions of your candor as tested during the litigation process.
I have viewed numerous surveillance video recordings of claimants engaging in tasks they told me they could not perform. I have also learned of inaccurate information provided on job applications and to the Internal Revenue Service, Social Security Administration, medical doctors, and financial institutions, to name a few. During my clinical interviews, claimants have provided me with inaccuracies ranging from their scholastic performance records and earnings histories, to their military discharge statuses, histories of illicit substance use, and criminal records. The list goes on and on.
Unquestionably, perceptions of an individual who is less than fully honest, including with non-litigation issues, reflect negatively on the person’s character and call into question whether his or her contentions made in conjunction with a claim can be trusted. This is the major reason lawyers opposing your claim expend great amounts of energy and time investigating you and exploit opportunities to defame your character and integrity. Of course, some attacks against you will be manufactured and, in reality, will be red herrings to deflect attention from your claim’s merits. These tactics, for better or worse, are standard practice in our justice system.
Are people who provide inconsistent, incomplete, or wrong information liars? Not necessarily. Intent to deceive clearly governs one’s motivation to provide less-than-honest information. In many cases, however, incomplete recall is the simple explanation for information provided incorrectly and/or incompletely.
Also, it is human nature to selectively recall, reframe, remember, and mind guard unpleasant life events. For example, your recollection of events associated with a prior acrimonious divorce may transmute over the years and not fully comport with actual events.
No one has a perfect memory. Most people cannot recall exhaustive details of their medical, employment, and earnings histories, let alone other events that may have little import to them. You do have a duty—heightened after taking a sworn oath to tell the truth—however, to do your best to fully cooperate and respond to all questions posed, regardless of how relevant or fair you perceive them.
In some cases, you may encounter a question while under oath that causes you to have the following dialogue with yourself: What does that have to do with my claim? It’s none of her (opposing counsel’s) business! She doesn’t need to know all of the details—or any of that! Your lawyer will instruct you when not to answer a question posed; otherwise, you have an obligation to respond to pending questions.
Telling the truth does not require you to voluntarily expose every detail of your life. Listen carefully to questions, and make sure you understand what is asked before you respond. Your simple “yes” or “no” response to a lawyer’s question forges your answer with the verbiage composing the query. Be sure you understand questions that you answer and that you express your responses as you intend.
Also, be wary of compound questions. For example, the question “Have you reported all of your earned income to the IRS, and do the amounts accurately coincide with your net self-employment income as reflected on your corporate tax return?” is really two questions. Further, you may not know the answer to either part of this compound question. When posed questions of this sort, request that they be rephrased so you can provide responsive answers.
You have the right to ask a lawyer to restate a question so you can comprehend and respond to it to the best of your ability. If you do not know the answer to a question, say so. Your lawyer will guide you on making appropriate disclosures and object to inquiries not relevant or marginally relevant to issues in dispute, as well as to questions that are harassing and/or argumentative.
The questioning you undergo during depositions can be long, stressful, and fatiguing. If you sense your concentration and mental-processing abilities are waning, remember: you have the right to request a break or the continuation of your testimony on a different date.
The veracity of testimony you proffer will be tested throughout the litigation process; if a scintilla of it is less than accurate, opposing counsel may attempt to impugn your credibility. It is essential that your testimony reflects your best ability. Too much pain and discomfort, fatigue, or mental confusion, for example, may impair your ability to testify; if this occurs, let your lawyer know.
Many find the discovery phase of litigation personally invasive. Depending on the nature of your claim, opposing counsel may scrutinize virtually all aspects of your life, including your intimate relations, mental health history, and social relationships. The nature of your claimed damages, from a legal perspective, governs fair areas of inquiry and discovery.
Lawyers invariably detect and assimilate inconsistencies while attempting to disprove your allegations. The more inconsistencies uncovered, especially if more than nominally significant, the greater the risk of your credibility eroding.
If, as the litigation process evolves, you recall an error or omission you made, immediately notify your lawyer and indicate your intention to correct and/or supplement the record. For example, if you learn you have provided wrong or incomplete responses to interrogatory questions or during your deposition, inform your lawyer and provide the amended/supplemental information. Also, as noted in Chapter 3, remember that you have the right to read and amend, via errata sheets, your deposition testimony and other information that may be incorrect or require further explanation; take advantage of this right as needed.
Be assured, errors—by both sides—will occur throughout the course of your litigation. No one is perfect, and no one expects you to be perfect, although opposing counsel will attempt to hold you close to this standard. Those evaluating the merits of your claim will, in part, judge your imperfections by their perceptions of your efforts to fully disclose all the facts, both beneficial and detrimental to your case. It is your obligation to provide complete and accurate information to the best of your ability.
Mind Your Presentation
The responses you provide in any context—for example, on a doctor’s intake form or pain diagram, during a deposition, to an interrogatory question, or on standardized tests, to name a few—will be carefully compared with both (a) any and all available records predating your litigation and (b) information developed over the course of your litigation. Further, this information will be compared, contrasted, and analyzed depending on the value and risk associated with your claim, vis-à-vis statistical data that simulates your profile, focus groups, mock trials, and other modalities.
Along with your verbal statements and information gathered through documents, those opposing your claim will analyze your nonverbal behavior—everything from your facial expressions during a video-recorded deposition to physical activities you engage in while being surveilled. It is critical that you remember you are creating new evidence throughout the litigation process and that this evidence is being developed to weigh your claim’s merits.
I recall, after conducting a clinical interview and reviewing medical records, being swayed to believe a woman’s presentation of her back injury and associated limitations. While in my office, she limped, walked with a cane, and made frequent positional changes; she also cried while telling me about her inability to pick up her seven-pound dog. Her credibility quickly vanished in my eyes, however, when I saw surveillance video of her carrying a five-gallon bottle of water up a flight of six stairs outside her house.
Be prepared to rebut evidence about you, whether partially reliable and based in truth or tainted, filtered, manufactured, or manipulated in some way by counsel opposing your claim. Opposing counsel will use available evidence to test your credibility and to refute your assertions.
More and more, lawyers gather intelligence about claimants via computers and telecommunications. Keeping this in mind, would you be comfortable if those opposing your claim have access to your computer hard drive, text messages, and Facebook page or other accounts on social media sites, or obtaining information about you from YouTube and other such sites? If your answer to this question is no, I recommend you take stock of the information you are transmitting; it is subject to being discovered and used to thwart your credibility and, by extension, your claim.
Be sure to avoid overstatement. When I ask a claimant about headaches and I get a response such as “Every time I get a headache, I vomit,” I become suspicious.
While the person may earnestly be making the statement as a figure of speech, this sort of statement, in the context of litigation, will be closely scrutinized, compared with evidence, mixed and matched and spun by creative lawyers in a way that, if less than one shade shy of the truth, can paint you as the prevaricator of the year. After hearing a statement of this sort, the suspicious side of me subliminally retorts: Really? Every single time you get a headache, you vomit? My suspicions multiply when I pose a follow-up question about whether the claimant is experiencing a headache while conversing with me, the claimant responds affirmatively, and yet I do not witness the claimant vomiting.
Here are a few more examples of responses that signal overstatement—in this case, to employment-related questions:
Q: How were your performance appraisals before you became injured?
A: I always got outstanding reviews. They loved me.
Q: What about your preaccident work attendance?
A: I never missed any work.
Of course, it is possible that the person questioned did in fact always receive outstanding performance reviews and maintained a perfect work-attendance record. If statements of this sort can be factually supported (e.g., via documentation or testimonial evidence), then make them—albeit more humbly than in the manner cited above.
Examples of better responses to the questions above (assuming the responses can be supported) follow.
Q: How were your performance appraisals before you became injured?
A: I believe my supervisor valued my contributions, and my performance reviews reflected this.
Q: What about your preaccident work attendance?
A: I take pride in having been a reliable employee. I can’t recall any absences for quite a while before my accident.
Of course, there are circumstances when a superlative-type response may be accurate. For example, someone really may have maintained a perfect work-attendance record or a 4.0 grade-point average while in school; however, as the saying goes, close only counts in horseshoes. Unless you have unequivocally attained the accomplishments you represent, do not attest that you have. Opposing lawyers often aim to engender perceptions that claimants overplay their disability-related claims; overstatements you make can fuel their efforts.
Avoid References to Financial Incentives
Focusing on your litigation, including a money award, during your interactions with defense counsel and its agents can lead to perceptions that secondary-gain motives are driving your actions. Secondary gain involves advantages some pursue as a consequence of being disabled—such as financial gain, avoidance of work, and sympathy—that are derived from reactions from others, rather than causal factors, and that can cause resistance to rehabilitation.
A particularly illustrative case of secondary gain involved an individual who, before becoming injured in an automobile accident, performed physically demanding warehouse work. The damages he sought included a claim of loss of earning capacity. As requested by defense counsel, he underwent a vocational rehabilitation evaluation.
During the evaluation, the claimant chose not to disclose his work history, made numerous statements suggesting profiting from his litigation was a priority over pursuing vocational rehabilitation, and indicated he was tailoring his behavior to optimize his claim efforts. An excerpt from the vocational expert’s report follows:
Although I attempted to engage Mr. Michael in a discussion about pursuing alternate, less physically demanding employment—including, after retraining, work as a dispatcher, inside salesperson, or security guard at a stationary post—he was not receptive. Mr. Michael stated: “I don’t want to do that. As soon as we go to court and they pay the lawsuit, I’m going to live off the interest.” He further added: “I don’t want to go to no training to get new skills. I just want them to pay me some money. And no one is going to hire a handicap like me.” Mr. Michael made numerous statements to me during my clinical interview and to members of my staff that indicate he is quite focused on his litigation. Other statements he made included references to his voluntarily suppressed level of activity. In this regard he offered, “I would do more if I didn’t have those jackasses [surveillance investigators] watching me.” He also asserted that defense counsel is paying his neighbors to surveil him, and he indicated this is further constricting his level of activity because of his concerns a higher level of activity would portend for his lawsuit. He offered: “I’m going to have my day in court. All they have to do is pony up the dough.” He further offered the following statement as the reason he was not forthcoming with his work history during my examination:
“Once those jackasses find out where I worked, they’ll try to find out something bad about me. That’s one reason I don’t want to provide it [information about my work history]. They’re trying to find anything they can to make me look bad so they don’t have to pay me. They got billions of dollars. All they got to do is pay me some money and I’ll go away.” When I asked Mr. Michael whether he planned to search for a job after his trial, he responded: “No. All I got to do is get them to pay me some money, and I’ll live off the interest.” He offered, while making several derisive comments about defense counsel: “I told them [defense counsel], ‘You got to pay me millions of dollars, not the peanut money.’” A sense of entitlement and inordinate focus on his lawsuit is likely inhibiting Mr. Michael from pursuing vocational rehabilitation. My analysis of his activities of daily living indicate much of his time is consumed with nonproductive activity including watching twelve to sixteen hours of television per day. In addition to not being receptive to my counsel about pursuing alternate occupations more compatible with his restrictions, he was also dismissive of information I attempted to provide him about services available through local agencies. Clearly, Mr. Michael did not impress me as motivated to pursue vocational rehabilitation.
The claimant’s statements, combined with the vocational expert’s analysis, portray him as an opportunistic litigant. Those evaluating and awarding monies for damages claims become skeptical about excessive focus on financial gain; this arouses suspicions that secondary gain is a root claimant motive.