If you are looking for a lawyer to represent you in a personal injury lawsuit, or even if you already have a lawyer, the following are the most common mistakes made by clients who are “plaintiffs”, and that are seeking to be compensated for their injuries and damages due to an unfortunate accident.
Your lawyer will generally not have the time, or energy, to explain everything to you, that you, as a client, should be doing, or not doing, while your case is winding its way through the legal system.
The very first and most important rule is: Never lie to your attorney!
You must understand that your attorney will accept the facts of your case as you present them, as to both “liability”, why someone else, the “defendant”, is responsible to compensate you for your injuries, as well as for the details of your “damages”. Your lawyer will be “litigating” both liability and damages, with the other side, the defendant, as well as with the Court.
Be aware that your attorney will not conduct any investigation to determine if you are telling the truth, and will accept what you have said, and will try to gather evidence to support what you have provided as the “facts” of your case.
However, the other side, the defendant, will be an insurance company, with a lot of money to hire investigators and attorneys, who are trained and experienced, and whose job it is to find the facts that can be used to limit and undermine your case.
For example: If you claim to be suffering from a neck or back injury as a result of your accident and you tell your attorney that you had never injured your neck or back before this accident, your attorney will accept that as a fact. If you tell your treating doctors that you never injured your neck or back before this accident, your doctors will also accept that as a fact.
But the other side, the defendant, will conduct an investigation and they will seek to find every prior lawsuit you were ever involved in, as well as obtaining all of your employment and prior medical records and films. So, if what you told your doctor or lawyer was not the whole truth, and they relied upon it in the litigation, the other side will use these errors to try to weaken and destroy your case.
Once the plaintiff, the injured party who is seeking compensation, is shown to have been less than truthful, then the judges, insurance companies, defense lawyers and juries will very much hold that against the plaintiff, whether by a negotiated settlement or by a verdict.
As an example: We represented a client who suffered a burn injury to his genital area. He testified that he now suffered from erectile dysfunction and that he had never suffered from this condition previously. The other side, the defendant, located his past medical records from many years ago that showed he, in fact, had suffered from erectile dysfunction in the past. Although I did believe that his burn injury had caused him to suffer injuries, based on this client’s fabrication the jury awarded him very little as compensation for his injury,
If this plaintiff had testified truthfully, that, yes, many years ago I did suffer from erectile dysfunction, but I was treated for it, as it states in my records, and then for many years I never saw a doctor or received any treatment for it as it was no longer an issue or problem for me, until after I was burned in this case. If that had been this plaintiff’s testimony, he would have been awarded the significant compensation he was actually entitled to for his injuries.
So, if you think that something in your past may negatively impact your case do not try to hide it, but rather discuss the facts with your attorney who will then be in a position to deal with and present those facts in the best possible way.
The rule to remember is simple. Once you are in a lawsuit as a plaintiff you will be held to a very high standard. Once a plaintiff is found to be less than truthful the case is almost always lost.
The second major rule to remember is: Be accurate in your testimony:
The best example of this is never say never, unless you are sure it really is never.
If you bring a lawsuit to recover for injuries suffered in an accident, a “Personal Injury Lawsuit”, you will be required to testify under oath at an examination before trial, also called a “deposition”, where the defendant’s lawyer will ask you questions about the facts of your case, both as to how you were injured, as well as the details of your injury and treatment.
After you bring your case, the other side, the defendant, may conduct an investigation and that investigation may often include having you followed and secretly videotaped, if they think that they can show that you were not being accurate in your testimony or that you were being less than truthful. With vans with blacked out windows and cameras with long range lenses you will not be aware that you are being followed and filmed.
For example: If you live in a private house, you may be asked whether you took out the garbage before your injury and whether you still do that now. If you testify that because of your injury you now, never take out the garbage, you will lose your case if the other side takes a surreptitious video of you ever taking out the garbage. On the other hand, if you testify that you do sometimes take out the garbage, but only, “if it is a light bag”, then there is no issue to be dealt with.
Similarly, if you are asked if you rode a bicycle before the injury or used a gym or played basketball and you testify that because of your injury you are no longer able to ride a bicycle, go to a gym or play basketball, you will lose your case if the other side takes a surreptitious video of you riding a bicycle, going to a gym or playing basketball. All of these examples are based on real plaintiffs with real cases that received less compensation because of their inaccurate testimony. The defendants’ lawyers will use your inaccurate testimony to argue that if you lied about this you also cannot be believed about anything you testify to.
If you testify, I cannot ride my bicycle or play basketball, or use the gym, as well or as long as I used to before my injury, then no video can hurt your case.
I have had clients testify that because of their injury they could no longer lift or carry any heavy objects. A video then showed one plaintiff carrying a TV down the street and another of a plaintiff carrying cases of beer to his home for the weekend. These plaintiffs did not get much money for their claims.
If you tell the truth when you speak to your attorney and your doctors, and are careful to be accurate in your testimony, you will not provide any ammunition for the defendant to use to attack you and limit your recovery.
Thinking the other sides representatives are your friends:
Although you may have sued another driver or a homeowner for your injuries, who in the lawsuit are called the defendants, you are really litigating with an insurance company, that has a lot of money to hire investigators and attorneys whose sole purpose is to limit the compensation you receive.
I have seen defense lawyers act very friendly and courteous to a plaintiff while at a deposition which puts the plaintiff at ease and tries to get the plaintiff to open up and talk. This lawyer is not your friend! No matter how friendly or nice the defense lawyer may act, he or she will do what they can to try to limit your compensation. So, at a deposition, listen to your attorneys’ instructions and just answer the questions and do NOT try to talk and convince the defense lawyer of the merits of your case. The more you talk the more issues you will raise.
I have seen very friendly investigators who show up at an injured persons home even before an attorney is hired, and a lawsuit is filed, to try and “get the facts” or even to settle the case for a very low amount. I have seen a serious motor vehicle case worth over $100,000 be settled for just $1,500 while the person was still home recuperating-because the investigator was so kind and convincing. Once you sign the release to settle the case for $1,500 the Court will enforce the settlement, even if it is a ridiculously low settlement number, and even if you did not have a lawyer to speak to.
If you were injured in an accident, try to hire an attorney as soon as possible and do not speak to anyone else about your case or sign anything without your attorney being present.
Not seeking treatment for your injuries:
The law in New York, as well as the Judges and juries that will ultimately determine the value of your case, and the defendants’ attorneys and insurance companies, all share the same belief: If you are not being treated for your injuries, either you were not injured, or that you have fully recovered from your injuries.
Their belief is that if you were injured, and if you are still in pain, then you must by necessity be seeking the best medical providers, for both your physical and mental injuries and complaints.
Only by reporting your pain to your medical providers are you documenting your injuries and complaints so that they may be accepted.
If you place yourself on a jury and imagine that a person who is claiming to have been seriously injured in a motor vehicle accident, testifies that he or she is still feeling pain, but has not seen or been treated by a doctor for over two years - would you the jury accept the fact that they are in still in pain?
Yet, I have had many clients, who although seriously injured have felt that they were just too busy with their daily lives and responsibilities to seek treatment for their complaints of pain. I suggest that as a plaintiff who is seeking to recover the maximum amount possible in damages for your injuries that you ask yourself: If your case would be settled for $100,000 based on your seeking treatment for your injuries, would you be happy in accepting just $10,000 because you were too busy to treat? Then ask yourself: As the award for your pain and suffering is tax free, how many years would it take you to actually save $90,000 from your salary, in after-tax dollars?
So, the rule is: If you are claiming to have been injured in an accident and have hired a lawyer to bring a lawsuit on your behalf then it is important for you to seek treatment for your injuries so that they are documented in the medical records.
Not updating your attorney any changes:
If you are claiming to have been injured in an accident and have hired a lawyer to bring a lawsuit on your behalf then you must keep your attorney advised of any and all updates in your contact information, employment status, changes in your physical and mental complaints, medical treatment and your medical providers.
Although you may not hear from your attorney for weeks, or even months, as your case slowly moves through the Court system, your attorney is under a legal obligation to provide all relevant information to the other side. As examples: If your attorney does not notify the other side that you are not working due to your injuries, and then provide the defendant with an authorization to obtain your employment records, you will not be compensated for your lost wages. If your lawyer does not advise the other side of your injuries and treatment, and provide the defendant with authorizations to obtain all of your medical records, then you will not be compensated for these injuries.
Your case will almost certainly be substantially delayed once the defense discovers that they are missing any of your records, which suddenly become all-important and critical to the defense.
Similarly, if you wish to call any witnesses at Trial to testify on your behalf, as to either liability or damages, then you must provide your attorney with their names and addresses so that your attorney can provide that information to the other side. If your witnesses’ names and addresses are not provided to the other side you will not be permitted to call those witnesses if your case should proceed to Trial.
I have had clients that have changed their phone numbers and moved from their address and did not provide our office with their new contact information. Other clients have either changed jobs or stopped working and did not provide our office with that important information. Or the client may have had surgery or pain management and did not provide our office with that important information.
So, the rule is: You must notify your attorney of any changes in your physical or mental conditions, any treatment you have received for your complaints, as well as any changes in your employment status or contact information.
Hiring the first lawyer you speak to or meet:
If you were seriously injured in an accident and are seeking to find an attorney to represent you then your lawyer needs to be someone you trust completely, because, to an extent, you are putting yours, and your family’s future into this lawyer’s hands. Whether or not you do receive the compensation you are entitled to depends to a large part on your selecting and hiring the personal injury right lawyer for your case.
Yet, I have heard time and again from clients, who now find that they are unhappy with their lawyer, that they actually hired the very first lawyer they spoke to or met with. Why do people put more time and energy into buying a car or a suit than they do to decide which attorney or firm to hire for their personal injury case?
I have heard from people that they found their lawyer because this lawyer actually had a desk in a doctors or chiropractors’ office where they sat and tried to solicit injured patients. I have heard from people who were referred to their lawyer by their ambulance driver, or from a doctor or nurse at the emergency room or hospital. I have even personally experienced and heard about lawyers who just walk into your hospital room, uninvited by anyone, and offer to represent you.
Selecting the right lawyer and law firm can make all the difference in your future and in the compensation you ultimately receive.
Since all personal injury lawyers will meet with you without any fee or charge, why not meet with and interview two or even three lawyers and law firms before deciding who you wish to hire?
When you have a serious case then you need to ask yourself: What type of attorney and law firm am I looking for to represent me? There are lawyers and law firms that take on many cases and then try to settle them shortly after being hired. Unfortunately, in my experience when you try to settle early, you may be offered only 10 cents on the dollar, or 10% of the true value of your case.
I know of one law firm that only has only one or two lawyers in the firm and yet has over 800 cases! They have many paralegals, who are not lawyers, mostly handling these cases and they just try to settle every case and make money on the volume of cases that they handle. If that is what you are looking for then that is not an issue.
But, if you were seriously injured in an accident and are seeking to be fully compensated for your injuries, and not just seeking a quick settlement, then you need a lawyer and law firm that will litigate your case until you are made a fair offer, and if not, then they will be ready to proceed to a trial and to have a Judge and jury decide the value of your case.
Insurance companies and defense attorneys know which lawyers and law firms are just seeking a quick settlement, and who will accept a small percentage of the true value of the case to get it settled without them doing any work or spending any money, and which attorneys will insist on obtaining the full value of a case and if that is not offered then they will actually spend the time and money to proceed to a trial.
One of the dangers of settling your case early is that you may not even know the full extent and the permanency of your injuries yet, and if, and how, your future life will continue to be affected by your injury
Having all of your injuries diagnosed:
Over the years many clients have asked me: After my personal injury case is over, whether it is by a settlement or a verdict, if I later discover that I suffered additional injuries, or that the injuries are worse than I thought, can I then reopen my case?
The simple answer is: No. You cannot reopen your case after it is over. Once your case is resolved, whether it was by a settlement or a verdict, it is over and cannot be reopened.
Once you are seeing a doctor, and have a diagnosis, it is up to your lawyer to let the other side and the Court know what you are claiming as your injuries. Lawyers must do that by listing all of your injuries into what are call the “pleadings”, and your lawyer must also give the other side medical authorizations permitting them to obtain your medical records, as well as having you examined by the defendants’ doctor(s), and also obtaining medical reports from the doctors you will need to call at trial to testify on your behalf to prove your injuries. Your lawyer can only do all of this for your case if you are being treated and if you let your lawyer know what doctors you have seen and what your complaints are.
So, if you have a personal injury case you must not only seek treatment and obtain diagnoses for your injuries but you must also let your lawyer know what doctors you have seen and what your complaints are. If you do not keep your lawyer up to date on the doctors and treatments, then your damages will not become part of your case and you will not be compensated for them.
That is why, if you were injured and are now a plaintiff in a personal injury case, it so important for you to see the right doctors to obtain a diagnosis of everything you have suffered in the past, as well as what you are reasonably expected to suffer from this accident in the future, whether physically or mentally.
When you sue for damages in a personal injury case you are suing for your past pain and suffering as well as for your projected future pain and suffering. Which expert doctors your lawyer will need to retain to prove your case will obviously depend on what your injuries are. Whether your case is resolved by a settlement or by a Trial and a jury verdict, you must have medical reports setting out your injuries as well as medical expert(s) prepared to testify to those injuries on your behalf.
It is only when you show the defendant that you are prepared and ready to proceed to a Trial that you can hope to obtain the highest possible settlement.
Do I need to have surgery?
This is another question I have often been asked by my clients. If you have a personal injury case do not make the mistake of confusing your life and your health with your lawsuit.
Whether or not you decide to have surgery should depend on what you and your doctor(s) decide based on your health, your condition and your complaints. It should not in any way depend upon the lawsuit. Your lawyer is not a doctor and should not be giving you medical advice.
If you are thinking of having surgery, then it is a good idea to have the surgery before your case is resolved. If you do not have surgery then the defense, and their expert doctors, will argue that you do not need surgery. If you do have the surgery, you have a much better chance of receiving the compensation you are entitled to for it.
However, if there is a reason you are deciding not to have the surgery while your case is still pending, whether due to fear, or due to the risks involved, then your doctor will explain that to the Court and jury.
I have even heard from clients that some lawyers have told them they must have surgery to increase the value of their case. I have even heard of lawyers who push their clients to borrow money at exorbitant interest rates, as much as 36% compounded monthly, so that you can pay for your surgery.
The rule is: You should decide when to have surgery based on what is best for you, and not based on your pending case and certainly not at your lawyer’s urging.
Do I need to treat with doctors my lawyer recommends?
I have heard from clients that there are lawyers who, when representing victims of accidents that have suffered serious injuries, insist that they must be treated by doctors recommended to them by that attorney. In my view this is not the best way for you to get treatment for your injuries.
Most people, before they suffer injuries in an accident, are not familiar with medical specialists, such as an orthopedist, neurologist, pain management or a surgeon. Since personal injury lawyers do deal with many clients that have suffered injuries these lawyers become familiar with, and get to know, many doctors who treat persons injured in various types of accidents. So, if you need help in finding the right doctor for your injuries then there is nothing wrong if your lawyer helps you to find the right doctor.
There is nothing wrong with your lawyer helping you find the right doctor for the treatment you need. What is wrong is, if your lawyer insists that you only be treated by a doctor that the lawyer is recommending. You should be obtaining the best medical care and treatment that you can find and it is up to you to select what doctor(s) you want to be treated by or have surgery with. It is always a good idea to get a second, or even a third opinion, before deciding to have any surgery.
If you were seriously injured in an accident, and your lawyer is pushing you either to have surgery, or to be treated only by his recommended doctors, then I would strongly suggest you find and speak to other personal injury lawyers, since you may change lawyers at any time, even after your case has been started.
When you bring a personal injury case and are seeking to recover compensation for your injuries your lawyer will tell you what to expect as to how long it will take for your case to progress though the Court system. It is up to your lawyer to try and move your case through the system as expeditiously as possible.
Unfortunately, the facts are that the Courts and Judges are very busy so that will cause your case to be delayed. Unfortunately, defense lawyers also have no sense of urgency and will generally do everything they can to delay your case from proceeding expeditiously.
It is your lawyer’s responsibility to try their best to move your case along and deal with the Courts, Judges and defense lawyers. However, I have found that clients can be their own worst enemies in causing delays to their cases.
Clients can often delay their case because they are just too busy to attend their deposition, to obtain medical treatment, or to go to see the defendants’ doctor(s).
When a personal injury case is brought the client, called the “plaintiff”, must attend a deposition where the other side can question them about the facts of their case. You must also see and be examined by the defendants’ doctor(s). If you are too busy to appear at your scheduled deposition, or at the medical examination(s), it will delay your case.
If you appear for your deposition and the other side has not been given authorizations to obtain all of your medical records, because you did not advise your lawyer of your treating doctors names and addresses, then the other side will ask that you return for a second deposition, but only after they have obtained all of your records, and they will also refuse to permit the case to progress until they have completed your deposition. This is also what will happen if the defendants’ examining doctor is not given all of your records.
If you are a plaintiff, you must do your best not to cause delays in your case by doing everything required of you and providing all the information your lawyer needs on a timely basis.