Part 2 - Navigating Messy Testimony
If you follow the steps I laid out in #35, there will be very few inconsistencies between the medical records and your clients’ depos. For those that occasionally slip through the cracks or already exist from before implementing these preventative measures, here are steps to honestly show the jury those lapses were innocent mistakes, not sinister coverups.
Memories can fade
Sample voir dire analog:
I want to ask you about the precision of your memory as to past events. Some lucky people have near perfect memories, almost photographic. They can recall details like it was yesterday. For most of us memories tend to fade over time on the details of past events.
For example, one of my partners and I were in trial together when 9/11 occurred. You would think the details of that horrible day would stick since it was so memorable, but it turned out that wasn’t so. Recently, we were talking about the day and had completely different recall as to how and when we first heard of the attacks. He was sure we found out together while watching tv in a restaurant on our lunch break. I was equally sure we found out together, but it was when the judge told us in the courtroom before lunch. We didn’t watch those sickening images on tv until after the judge told us about the terrorist attacks.
We both were telling our own truths based on our own memories. After going back and forth, we figured out we were both part right and part wrong. The part we were both wrong about was that we were together when we first learned of the attacks. My partner actually went to lunch alone. He did find out about the attacks while watching tv at the restaurant. I stayed in
the courtroom to work and had no idea what was going on outside those four walls. After lunch, my partner walked back into the courtroom and, before he could tell me the news, our judge came in to announce what had happened, which was the first I heard of it. The judge called a recess for the rest of the day. Then, my partner and I walked across the street together to that same restaurant and I finally saw the replays with my own eyes.
As it turned out, I did hear it from the judge, but it wasn’t in the morning before lunch, it was after lunch. My partner did learn of the attacks from the tv at lunch, but I wasn’t with him. Obviously, neither of us have photographic memories as to the details of past experiences, even stunning ones.
How many of you have had experiences like that where parts of your recall were off about past events? Were you trying to be misleading or was it an honest mistake?
How many of you have that rare gift of near perfect memory of past experiences? Do you know others that don’t share your unique abilities? If they make mistakes in retelling a story, do you assume they’re telling it wrong on purpose, or doing their best to recall and making an honest mistake?
The reason I ask is trials involve witnesses who have to recreate past events based on recollections. For both sides, I want to make sure everyone recognizes that there is a difference between unintentional mistakes and lies. Sometimes people do lie, but certainly every lapse in memory isn’t so sinister.
Fortunately, in some cases there are fixed facts that don’t fade to help jurors figure out what happened, things like MRIs that record a clear and lasting picture. You’ll see we have them in this case.
Opening
As we talked about in jury selection, some people are better than others at recalling and retelling past experiences. You will see Ms. Jones is someone who is not so good at it. The good news is you will have something to base your decision on that is far better and far more reliable than memories of past events. You will have MRIs that don’t fade with time. Those MRIs will prove Ms. Jones did not have broken discs before this crash, they were broken as a result of this crash.
Perspective
Another fair way to explain unintentional missteps in deposition or medical records is to explain that peoples’ perspective of pain is all relative to their life experiences. Past pain may have felt bad at the time because your client hadn’t yet experienced the kind of pain this new injury is causing. Now that he knows real pain, the old pain pales in comparison. The best time to deal with this change in perspective is in depo prep to avoid answers that can be exploited by the defense, rather than after the fact. If you have to explain innocent mistakes in depo answers, the truth often lies in explaining the honest difference in perspective based on new experiences.
Mixed Meanings
Another legitimate explanation for answers that seem out of sync with the records is a breakdown in communication. Questions or words can have different meanings to different people. A client could tell an ER nurse that she has had pain in her back on and off in the past couple of years, but it never lasted. The nurse could write down “chronic back pain”. You client didn’t use the word “chronic”; she doesn’t even know what it means. It was an interpretation by the notetaker that makes it sound worse than what was actually communicated.
The truth is most clients don’t recall the details of what was discussed in individual doctor visits months or years ago. If that is true, they should say so. Don’t let the defense make it seem as if your client has precise recall of what was said in each visit so they can run your client through the ringer using the written words in those records, most of which are the doctor’s writing, not your client’s. Your client can explain (assuming it’s true) they’re not saying the doctor made it up, they’re just saying that’s not how they recall feeling in that timeframe. Then, you can explain the concepts of mixed meanings, perspective and/or mistakes in medical records.
Mistakes in Medical Records
Computer-generated electronic records are notorious for mistakes. If you have a record that is out of sync with the rest of the facts, don’t be held hostage by it. Most people understand medical records can have unintentional inaccuracies. You can ask during jury selection, “How many of you have seen medical records and noticed things that weren’t right, especially on those electronic computer-generated forms?”
Also, study the records for internal inconsistencies. I recently had to deal with a post-fall ER record that had a computer readout with the work “negative” repeated after a series of preprinted back examinations, including range of motion and tests for tenderness. Even the defense’s handpicked neurosurgeon expert admitted our client suffered a painful back injury in the fall. He said it was just a sprain/ strain, not a herniation, but still she had an injury that would have hurt to push on or twist around. The treating neurosurgeon and subsequent MRIs proved she had a bad herniation which certainly would have resulted in positive results if tenderness and range of motion had actually been checked. Nonetheless, defense would feature that entry to suggest our client couldn’t have hurt her back in the fall.
Before the exam section, the history section of that same ER record said, “patient denies back pain”. Initially this seemed like another hurdle. Then it dawned on me this entry actually helped show the record was not reliable. In a busy ER, while dealing with a patient with multiple other injuries (knee, wrist, and ankle), it is unlikely the ER doctor would waste time conducting a detailed examination of the back after the patient allegedly denied hurting her back or having any pain there. That internal inconsistency helped show the record didn’t add up with any of the other evidence or with itself.
Conclusion
Our job is to protect our clients from efforts by the defense to creating false impressions of any kind, including from the medical records. We do that by mastering those records and discussing them with our clients before their depo. Then we stand guard against any inconsistencies that could result in an unjust result.