The Top Five Things That Hurt The Value Of Your Personal Injury Case.
Over the course of 20 years as a personal injury and accident lawyer, I've encountered some missteps that can significantly affect the value of a Maryland personal injury claim. These include:
- Failure to comply with a treatment plan
- Misstatement or omission of fact
- Failure to explain the effect of an injury
- Failure to listen to advice of chosen counsel
It's fairly commonplace for someone who sustained injuries in a motor vehicle accident to undergo a course of physical therapy to assist in their recuperation. It's also fairly common for those therapy sessions to be scheduled for two or three times per week. If the individual is going once or twice every other week, or goes several weeks without attending a physical therapy appointment at all, some serious questions are likely to be asked. My initial concern would be that such an individual is not participating in the therapy regimen the doctor prescribed, and therefore, may not be getting better as quickly as they could. A claims adjuster, or car accident defense attorney, is going to paint a different picture.
These insurance representatives will argue that an individual who is not receiving medical care is, in reality, not injured at all.
The contention will be that, if this person were injured, surely, they would be doing as the doctor prescribed to get better as quickly as possible. Make no mistake, judges and juries listen to this line of argument. This is not to suggest that you must do everything that a doctor may recommend to you. For example, an orthopedist may offer you surgery, which, for a variety of personal reasons, you decline. This is perfectly appropriate and no one will second-guess it. This is different from you scheduling a surgery with a doctor, and then no showing up. However, if you and your doctor have agreed to a plan of rehabilitation you should stick to that agreement, or be ready to offer a solid and reasoned excuse as to why you did not.
Another event that can have a significant impact on the value of a personal injury claim is a misstatement or omission of fact made during a declaration given to an insurance company, or during the course of a deposition if your case is in litigation. Clearly, getting caught in a lie in any context is never good. Equally obviously, some misstatements are innocent. The person making the erroneous statement simply forgot or had the information wrong. The misleading nature of some assertions is a little more ominous, or can certainly be painted by a skilled personal injury defense attorney to look that way. I’d venture to say one of the most common instances of a damaging statement or misstatement made during a deposition is denying a history of personal injury or prior accident. The fact that you might have had an injury to the same body part for which you are claiming injury in the current personal injury case, frankly, standing alone, does not matter at all.
What does matter- and what can significantly affect the course and outcome of your case- is if you are asked if you have ever had a prior injury to the relevant part of your body, and you deny having had such an injury, when in fact you have had one.
These are the types of statements and omissions, or untruths, which a skilled defense attorney can exploit to seriously call into question your credibility during a trial. Again, make no mistake, skilled lawyers will obtain the greatest mileage they can out of such omissions or inconsistencies.
I believe that perhaps the biggest single factor that any juror or judge looks at in assessing the severity of a personal injury- and accordingly, the appropriate amount of money damage they will award- is the way or ways in which that injury, and the consequences of it, prevented the injured person from enjoying his or her life in their normal and customary fashion.
In my view, the personal injury plaintiff who gives precisely detailed testimony about the ways in which an injury kept them from performing their normal tasks at work or at home is a good witness.
A person who can detail a factual background about the ways in which injuries impacted their personal activities, or made such activities more painful, or more difficult, is, going to make a compelling, effective witness. Such a person is always going to present a better case than the person who simply states “it hurts so badly” it was an “11 out of 10” on a pain scale “all of the time”. Many a case has been lost by a plaintiff who cannot offer specific concrete, reliable and verifiable, examples of how an injury caused them to change the nature and course of their life.
If you’ve chosen to hire a personal injury or accident attorney to handle your case, it goes without saying that you should listen to and heed the advice of your chosen lawyer. If you hired that individual, you've done so for a reason, and presumably, you wouldn't have hired someone whom you did not trust to give you sound and solid advice. Your attorney’s counsel on matters such as a reasonable value range for your case, or whether or not litigation is appropriate, or whether settlement is the better alternative outcome are things to which you should give careful and deliberate consideration. If you have lost confidence in the your chosen lawyer's guidance,. you should consider alternate counsel, or the prospect of handling the case on your own.
-This Article was updated by Eric Kirk on 10/20/20.