Which is worse? Being a liar or having a bad memory? Sometimes they blur…Better not being forced into the position of trying to prove you have a bad memory rather than a liar.
No one has a perfect memory. But when it comes time sue you are about to enter a danger zone of land mines and booby traps, snares, bear traps, trip wires and snake pits. If you have ever been hurt before, you better know about it or else…you will look like a Liar…and no one likes liars.
There is a Chinese proverb: the faintest ink is stronger than the strongest memory. “I don’t remember” does not stand a chance against a medical record showing a previous injury from your past. Records are sometimes kept for a long, long time.
In litigation the Defense of a bodily injury case will always get and scour all your medical records for anything that looks, smells, or sounds like a previous injury to the same body part. They will then defend by saying the earlier accident is the true cause, not the most recent accident, and the icing on the cake for the defense is when you “forget” about the old accident. Medical records have a funny way of turning up other doctors, other hospitals, other illnesses, injuries and conditions which we have forgotten all about. Your right of privacy is gone and you stand exposed, naked to your past without a shred of decency left. You will have to give your lawyer a detailed breakdown of every kind of doctor you have seen for the last 10 years, and he will ask you what they saw you for. He should scour those records for you and be looking for similar injuries. If you or you lawyer fail at getting and scouring your records it will plant a poisonous seed which will blossom at exactly the worst possible time: during trial.
I was recently in trial for a nice lady who claimed severe foot and ankle injuries as a result of a slip and fall at a nice restaurant in 2008. She had almost $250,000 in doctors bills. I had invested a lot of time and money in her case. I had taken over from 3 earlier attorneys. I believed her. She had RSD/CRPS in her ankle which is the worst kind of pain known to mankind. In her deposition in 2010 (years before I got her case) she was asked if she ever injured her foot or ankle before? Her answer was: “No.” The Defense was laying a trap.
Fast forward to 2013. She is in trial on the witness stand in front of a Jury. She is claiming severe foot and ankle injuries and RSD due to the slip and fall in 2008. On cross examination she is again asked about previous foot and ankle injuries. She still says “None.”
The trap was set. She was caught. She was embarrassed in front of the jury. It turns out that 20 years ago she was seen in an ER for an ankle injury. She got ankle x-rays done. She said she forgot all about it. Was she lying to cover it up or did she really have a bad memory? During her deposition she had forgotten all about it, and her lawyer did not know about the 1993 ankle injury and failed to warn her about remote accidents. A better answer would have been “I don’t remember.” The Defense attorney whipped out her 1993 ER record showing she was in the ER with ankle and foot injuries in the exact same spot she claimed was hurt in the slip and fall in 2008. He gave it to the Jury. Her case was over. The jury thought she was a liar and they quickly dumped her case into the toilet.
Stuff happens at trial. Sometimes the bad guy wins. Sometimes the claim should not be made at all. Better have a lawyer who knows how to prepare your case for settlement and if necessary, for deposition and trial. Better to be prepared for the storm that is coming than hope it will remain a secret. Ignorance is not bliss.