What Do You Advise Your Clients To Do (Or Not Do) During The Course Of Litigation? How Do People Inadvertently Hurt Their Cases?
Over the last five to 10 years, social media has been a source of complication in many cases. For this reason, one of the first things I do when I take a case is begin monitoring the client’s social media profiles, including Instagram, Facebook, and Twitter. The defense is going to monitor the plaintiff’s activity online, and even a seemingly benign post can be twisted and used against a plaintiff by the defense. For example, I represented a client who had a shoulder injury and who posted a photo of herself at an amusement park. The defense obtained this photo and argued that my client was faking her shoulder injury, or else she would not have been well enough to go to an amusement park.
Clients need to understand that what they post on social media can have a big impact on their case. We usually suggest that clients don’t post anything during their case, but I understand that is a difficult thing to do for many people. At the very least, we advise that our clients not post anything that they would not want shown in open court. Photos from a recent ski vacation in Colorado might be a great post for likes and shares, but it could kill a personal injury case. Even if the plaintiff was only on the bunny slopes for a few minutes and was in excruciating pain afterward, all the jury is going to see are the photos of them skiing down a hill. Social media posts are so important, and clients need to be very careful with them.
It is also important that plaintiffs do not exaggerate their injuries. I’m not sure if it is a natural inclination, but some people tend to rate their pain a nine on a scale of one to 10, which is so severe that most people would pass out. These individuals are usually exaggerating the level of their pain, hoping that it will help their case, when in reality it does quite the opposite. We want clients to make their complaints known and to be open and forthright with their doctor, but we don’t want them to exaggerate; there are ways that the defense can determine whether or not a plaintiff was exaggerating. For example, if the plaintiff says they have excruciating back pain yet an MRI shows a normal spine, then there must be some other reason for the subjective complaints of pain; it could be emotional in nature, or due to a history of trauma, but it’s not accident-related.
We never want our clients to exaggerate their pain, but we also don’t want them to downplay it. One of the first questions I ask clients when they come in the door is, “How are you doing?” I do this because I want them to articulate the pain to someone who’s a stranger (me). This is a skill, and it can be difficult to do, especially for men. I’ve seen men hobble into my office, and when I ask them how they are doing, they say they’re “fine,” despite the fact that they are grimacing and clearly in pain. With clients like this, we work on getting them more in the middle of the spectrum—not where they are denying their pain, but also not where they are exaggerating their pain just to help their case. We educate clients on this spectrum and emphasize the importance of being honest about their experience.
Ignoring the doctor’s orders is another way that people can inadvertently damage their case. If the plaintiff does not follow their doctor’s orders, then the defense will be able to argue that if they had followed the doctor’s orders, then they wouldn’t still be injured and in pain. There are ways that we can explain and put that into context, but it’s better if the client just does what’s recommended to them from the beginning. Doctors are there to help people heal, and clients should listen to them. As a lawyer, it is my job to put my clients in the best position possible for gaining a full recovery, while the doctors are the ones who will actually execute the plan that will best help the client physically heal from their injuries.
Prior to litigation, clients should ask questions and ensure that they understand the issues in their case. People usually do one of two things: put all their trust in the attorney and say they “don’t care” about understanding the case for themselves, or become ultra-focused on every detail of the case, to the point that it nearly engulfs them.
When educating our clients, we tell them that the case will come to an end one day, and the defense will not give them an apology; the best we can do is get the money they deserve. This is one way to mentally prepare clients for the process of letting go of anger, which is a particularly difficult emotion to let go of. When my clients are angry, we try to help them through that anger.
We want to educate people so that they can move on and become the best version of themselves. This involves helping them understand the issues in their case, keeping them updated as the case progresses, and answering any questions that may arise. As a lawyer, I work on cases all day, every day, but for my clients, everything is unfamiliar to them. It is important that I keep this in mind and ensure that my clients don’t get lost along the way. To this end, I encourage questions and good dialogue throughout the case, because I want to foster the attorney-client connection, as this ultimately benefits the case.
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