accident (if there is a potential preexisting injury issue). Second, it takes away effective cross-examination from the defense attorney as to why he or she did not go back to the trusted doctor whose surgery was so successful that he or she was back to 100% before the accident. Third, you are not in a position to lose credibility with the adjuster, judge or jury as to why the client picked your doctor over the client’s existing doctor.
Do Not Allow Your Client to Give a Recorded Statement
Most adjusters will tell you that they need a recorded state-
ment from your client to firm up liability or to assess credibility. Providing a recorded statement rarely results in a finding in your favor on liability, nor will the adjuster fall in love with your client over the phone and offer more money. The only use for a recorded statement is for the defense attorney to take sound bites out of context and use them as cross-examination against your client at trial. Do not give the adjuster or defense attorney any ammunition. The obvious exception to this rule is an uninsured or under-
insured case. Because these claims are breach of contract cases, the client’s own insurance contract almost certainly contains language that makes giving a recorded statement a condition precedent to recovery. Check to see when the claim was denied. If the claim was denied before the claim representative requested the statement, you may have grounds for denying their request yet staying in compliance with the policy. Read the policy carefully. If you have to provide a recorded statement, discuss the statement with your client before it is given, and arrange for the client to come to your office to give the statement by conference call. Tell claim representative you insist on a copy of the statement.
Doctor’s and Physical Therapist Are Not Your Confidants
Let your clients know that their doctors and physical thera-
pists are not their friends, counsel or confidants. It is important that the client tell the healthcare provider everything necessary to provide proper care and treatment. So while his prior neck injury is relevant, the fact that it occurred during the three year stint he did at a state prison for assault and battery is not relevant to his care and treatment and, if mentioned, may find its way into the medical records. Providing details of their everyday life may damage your case if the impression left is that the client is really fine because they are going about their normal routine. “I had pain this weekend” is far superior to “I had pain this weekend in Ocean City.” Additionally, make sure you explain to your clients that if
they are carrying in groceries over the weekend, painting the house or participating in any other activity of daily living, they may want to mention the increased pain in lieu of giving the defense attorney, adjuster or judge ripe cross-examination about how active they were following the accident.
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Subsequent Accidents and Injuries While your client is in treatment, it is imperative for him
to understand that if he has a subsequent injury, for better or worse, he must tell his treating doctors about the incident and also let you know. Every adjuster has access to a claims index. Auto accidents will appear on a claims index if the ac- cident is reported by either party, even if there are no reported injuries. Subsequent accidents can create very effective cross- examination, even if there are no injuries, unless the patient tells the treating doctor about the accident and it is documented that the subsequent accident did not cause any increased pain or exacerbate the pre-existing condition. If your client has a subsequent accident and is not injured, but does not tell his or her doctor, it creates a gray area for the defense and will be used against your client. Remove the ammunition: make sure your clients understand the importance of telling their doctors that they were not injured. If your client is injured in a subsequent accident, it is important for his or her healthcare providers to know so they may proceed appropriately.
Make Sure Your Client Can Appropriately Articulate Complaints
Occasionally, patients exaggerate the severity of their inju- ries. This presents a problem when a poorly prepared plaintiff
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www.robsonforensic.com Trial Reporter 33
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