Las Vegas Personal Injury Attorney
Las Vegas Personal Injury Attorney About Us Personal Injury Family Law Community Outreach Contact Us
Call Our Offices Now View Our Testimonials Visit Our Personal Injury Blog

Defeating the Malingering Defense

In our personal injury trials we need to have strategic methods for defeating any possible defenses which the Defense might put forward. As you begin to work up your case you will slowly destroy the various defense tactics employed. Once you have liability locked down the Defendant will likely retreat to the only defense it has left, which is the malingering defense. Here, the Defense accuses your client of being a liar and exaggerator with respect to his or her injuries. In this tort-reform oriented world we live in today, jurors are receptive to these arguments by the Defense. These arguments are catchy because they simplify the decision making process for the juror. The juror no longer has to analyze medical evidence and testimony but rather only has to take into consideration your client's motive. This is a much simpler mental process for the juror who is likely not accustomed to analyzing large volumes of medical data and synthesizing that same information. The juror is however, accustomed to making judgment calls regarding motivations and character as this is something a juror has done all his or her life.

Thus we, as plaintiff's lawyers, need to be prepared to counter this malingering defense. The first step in any case is to educate your client. You need to tell your client right off the bat that they need to be completely truthful throughout the case. Advise the client that they should not exaggerate any injury by even the slightest degree. Any lies will become apparent to the jurors, so get your client off to the right start immediately upon their retaining your services. The next thing you need to be doing, well before filing your complaint, is speaking to your client's treating physician. Find out if the treating physician thinks that the plaintiff is being sincere. Find out why or why not. If your treating physician does not think your client is being sincere with regard to his or injuries well then this is a case you probably don't want to take to trial. Better to find out early on prior to litigation rather than down the road after spending thousands of dollars and hundreds of hours working on the case only to find out how weak your case truly is. In addition to speaking to the treating physician speak to your client's friends and family. Get their perspective as to how the injury has effected your client's. This will tell you how strong your case truly is.

Once you have advised your client to tell nothing but the truth throughout the case and then gone a step further and confirmed with your client's treating physician and lay witnesses that plaintiff is not malingering, you can proceed forward with filing your complaint. You want to find out early on what position the defense will take. You can do this by way of discovery and it will become readily apparent early on if the defense is going to pursue a malingering defense. If it does become apparent that the defense will pursue this tactic then you need to attack this defense head on. Your instinct will tell you that you need to fight this tactic with more doctors and more medical evidence etc… You may need to do this but this is not your primary method of attack. The first thing you need to do is to force the Defense to take a strong position one way or another. Rick Friedman calls this "polarizing the case". Do not allow the Defense to hide in the murky gray area where they simply use their doctors to allude to the idea that your client is faking an injury. Force the defense to take a polarized position one way or the other way. Either your client is faking this injury or your client is not faking this injury. Nail down each and every defense witness on this issue in discovery. You have now drawn a line in the sand. If you don't draw this line in the sand, you allow the Defense to attack you from murky undefined waters where you will lose every time. You must polarize the issue.

This means you have to nail down the Defense to a position. When you ask various defendants if they believe your client to be a malingerer they are unlikely to come out and say yes they think your client is a liar. They will instead try to insinuate this fact without coming out and saying it. You thus need to corner each individual. Force them, through questioning in deposition to take a firm stance one way or the other. You cannot let them walk away in the middle ground. Once you have them nailed down and committed to their malingering position you can then beat them mercilessly.

In order to prove their case, the Defense will point out any inconsistencies in your client's case possible. These inconsistencies are not hard to find. Good lawyering will always pull up inconsistencies whether your client is a malingerer or not. You may need to address some of these inconsistencies to the jurors to explain them away. However, don't fall for the trap of letting the Defense define the issues. You need to make the case about one thing at this point. That is, "how dare the defendant first injure your client but even worse, go on to accuse your client of lying in an effort to escape responsibility for the Defendant's actions". The goal is to infuriate the jurors with the Defendant's lack of responsibility and immoral behavior. Use the Defense's own strategy against them. This is an old concept of warfare.

Once you have the Defense pinned down to their position that the Plaintiff is malingering, you need to then destroy this position. To do this you will need to rely on medical doctors and lay witnesses. When medical doctors are confronted with polarizing questions regarding malingering or not malingering they will hesitate in saying your client is malingering without clear evidence supporting that fact. Thus get these doctors to endorse the non-malingering position. Then you will go on to the lay witnesses.

You need to be talking to your client often about who her acquaintances were and are. Find out who her friends are. Find out who was on her bowling club. Find out where she did her shopping. Find every witness who has had repeated contact with your client. Then interview these witnesses. If the Defense puts forward this malingering defense then it becomes integral that you put forward lots of your lay witnesses. These witnesses will be able to tell stories of who your client used to be before the accident and who your client became after the accident. After the jurors have heard numerous accounts from lay witnesses about the difference between who you client was before and after the incident the jurors will have to decide if all of these witnesses are in a conspiracy with your client to lie about the injuries or rather that your client isn't lying at all. With enough good lay witness testimony, the jurors will not likely believe a conspiracy to be present. Nor will they think it plausible that your client faked her injuries for the past three years in an effort to trick everyone in his or her community. Thus, lay witnesses are your strongest ammunition in fighting the malingering defense. Once the Defense is effectively calling your client a liar you can now go on to put on your lay witnesses not only so they can speak on the difference in your client before and after the incident but also so that they can speak on your client's good moral nature. Have these lay witnesses speak as to your client's good character and propensity for truthfulness. Instead of just having each witness state these opinions take it a step further and have each witness give examples which demonstrate your client's strong work ethic and moral integrity.

Once the Defense has assumed and committed to the malingering defense and you have destroyed this position with your own witnesses you now need to continuously draw the juror's attention to how the Defense is defending their case. You can show some indignation at this point in trial. Now you make the trial about the defendant's lack of integrity. The case is now about the defendant's lack of responsibility. How dare he permanently injure your client, but now he is going to attempt to avoid responsibility for his actions by calling your client a liar? How dare the defendant do such a thing!

These concepts come from Rick Friedman, considered one of the most outstanding plaintiff's trial attorneys in the country. For a thorough understanding of this material I refer you to any of his books. Polarizing the Case discusses these issues in depth. He and Patrick Malone wrote a phenomenal book called Rules of the Road which is also terrific.

Categories: Personal Injury