Depositions
will describe having felt a big impact despite there being little visible property damage to the involved vehicles. Tis will sometimes be wrongly interpreted by a HCP and then recorded in the medical records as a “high speed impact.” I recently had this issue arise in a case that was arbitrated. Fortunately, the arbitrator understood how my client’s testimony could jibe with the medical records and evidence of property damage. I’m not sure that a jury would have reached a similar understanding.
9. X-rays. If there are repeat x-rays in the medical records (i.e., both the hospital and orthopedic surgeon took x-rays of the same part of the body), this is best addressed by the HCP who ordered them. Nonetheless, your client should be aware that he may be asked about this.
10. Physical Terapy (PT). If the client underwent PT, discuss span of treatment, number of visits, and utility (if it didn’t help the client recover, the jury may not provide money for it in its verdict). What modalities were used? Were any of them painful? If so, you might want to have your expert explain why this was the case. Review PT and other health care
bills generally, so the client does not express shock at the amounts at the deposition.
11. Injections and testing. Did the client undergo any for treatment purposes? Were they painful? Was an MRI or CT scan ordered? What was the procedure like?
12. Percentage of improvement. Discuss the percentage that the client’s injuries have improved at a variety of time intervals (e.g., 1 month after the collision, 6 months after it, presently). Similarly, discuss the client’s self-assessed pain rating (0-10 scale) at a variety of time intervals. Often, these ratings will appear in the medical records.
13. Vacations. Did the client cancel or not schedule one because of the collision? If the client went on a previously scheduled vacation, was his enjoyment of the vacation affected by the collision?
14. Loss of Consortium. If alleged, explain what it means and how invasive, graphic, and uncomfortable the deposition may become.
15. Change in activities. Explore whether there were things that the client normally did that he was unable to do for a period of time after the collision. Similarly, explore whether there were things that the client couldn’t do as long or as well after the collision. Also, explore whether these issues have resolved or not.8
In order to assist your client in talking about
such things, break them down into more digestible pieces, for example: a. work related activities b. activities related to the home c. exercise/sports d. hobbies e. f.
ability to get a good night sleep favorite things
g. interactions with children or grandchildren h. moodiness
16. Tere is a sweet spot for testimony
regarding human losses. Help your client find it. Exaggeration kills personal injury cases. Whining and underreporting diminish them. If your client can tell a story about how the collision has affected him, it can be very persuasive. Help your client find the sweet spot.
17. Lost Wages. Why did you miss work? Did a health care provider write a disability slip? What did your job involve physically? Why couldn’t you do it? Was
8 If your client testifies that he has not returned to doing certain pre-collision activities, you can bet that defense counsel will ask him if he has tried those activities since the collision. If your client answers in the negative, the next question will be: “Well how do you know you can’t [insert activity]?”
20 Trial Reporter / Winter 2011
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