Most of us want to put on our best faces, appear strong and confident, strive for success, and work hard to prove we’re good employees, parents, spouses. We don’t want to publicly disclose our losses or problems. This can be especially true for a person who’s experienced a significant personal injury. He or she may be in denial about how their life has changed. They may want to just “put it all behind them.” Or they may just not want to burden others with what they see as private suffering.
But if an injured person brings a lawsuit (thereby becoming a plaintiff), social conventions and denials of suffering at some point have to be put aside. The mask must come off if justice is to be done.
What does this mean exactly?
For the lawyer
In a personal injury lawsuit, the plaintiff’s lawyer is the plaintiff’s main resource for seeing that proper compensation is obtained and justice is done. The lawyer may also help coordinate treatment or rehabilitation teams and be one of the few people with a good grasp of the plaintiff’s long-term needs.
To do all this, the lawyer must first be a good listener, taking the time to get to know the plaintiff from the beginning. There will be questions about how the accident happened, but equally important will be questions about the plaintiff’s condition both before and after the accident – the plaintiff’s personality, ambitions, strengths and weaknesses. The lawyer will want to meet with the plaintiff’s family and friends to cover this as well, the sooner the better.
The lawyer will also want regular updates of the plaintiff’s progress. E.g. they may ask the plaintiff to keep a diary and/or attend an independent medical assessment, hopefully getting ongoing “snapshots” without losing the important focus on recovery.
If the plaintiff discloses documents in a lawsuit, even to opposing counsel, those documents remain confidential and aren’t to be used for any extraneous purpose.
If a plaintiff cheats or hides things they think would look bad, these facts usually come out. It’s best for the plaintiff to simply not do things they’ll want to hide. If they do, they should at least disclose them to their lawyer so the lawyer can determine how to minimize the negative impact.
The plaintiff must trust their lawyer throughout this process and answer questions as honestly and fully as possible. Because it’s only when the lawyer fully understands the plaintiff and what’s happened and is happening, that the lawyer can convince others – the insurance adjuster, the opposing counsel, the judge and jury – of the extent of the losses.
For the treating care providers
One type of document that is often heavily relied on to get a sense of a plaintiff’s functioning is treatment records. These records can be generated by the plaintiff’s treating doctor, physiotherapist, or any other care provider. What does taking off the mask mean with these people?
- It means the plaintiff giving specific examples of how they’re functioning. E.g. “I tried making cake and couldn’t keep track of the ingredients and after a while, I just gave up.”
- It means answering questions honestly, but if that includes things their lawyer told them, insisting such information remain confidential and not be noted on the doctor’s or plaintiff’s records.
Note: While it’s important not to minimize, hide, or deny any problems, it’s equally important that the plaintiff not exaggerate the problems. Simple honesty is always the best policy.
For an IME
Another place the plaintiff takes off the mask is for an independent medical exam (“IME”). Arranged by either the plaintiff’s lawyer or the defendant’s lawyer, the IME is supposed to assess such issues as (a) what injuries the plaintiff sustained (b) any problems with the plaintiff’s functioning (c) what treatment/supports the plaintiff needs, and (d) a prognosis for the future.
IME reports can carry a lot of weight when it comes time to settle a claim. The most important aspect of this process is that the IME expert gets all the relevant facts. If the plaintiff’s lawyer sets up the appointment, the lawyer will be responsible for providing the expert with a great deal of background information. The rest is up to the plaintiff. Even though the plaintiff doesn’t know the expert and may only see them once, they must remove the mask. No, they don’t disclose things their lawyer has told them, but they should otherwise be as forthcoming as possible – neither minimizing nor exaggerating – in answering all questions put to them.
When the plaintiff can’t communicate
What happens if the plaintiff can’t communicate? What if he/she is a child, or suffering from a mental illness or a brain injury, and can’t understand or describe their problems? These issues complicate the legal process, but judges and juries are real people who bring to their task real-life experiences. They can get a compelling picture of a plaintiff’s issues in other ways. How?
- Through family, teachers, caregivers, employers. People around a plaintiff may be able to describe what the plaintiff can’t.
- Through medical experts. This can be with either physical test data or observations
- Through the lawyer. It’s doubly important in these cases for the lawyer to get to know his/her client well so the lawyer can decide how to best show the problems – e.g. using medical experts and testimony from people around the plaintiff. But also by showing how the plaintiff’s language, demeanour, or reasoning are actually indicative of the problem. If the judge or jury “get” that the problems are legitimate, the plaintiff’s communication problems may serve to underscore what a lonely and difficult struggle it is for the plaintiff to manage, not only in the courtroom, but each day of their life.
Lawsuits, in the end, are about discovering the truth. The more consistently a plaintiff offers it, the more likely justice will prevail.
Excerpt from “ACCESS TO JUSTICE: Legal issues for the injured and people with disabilities,” written and produced by Faith Hayman, Barrister and Solicitor.
This is for informational purposes only and its contents are not intended nor should be considered to be legal advice.
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