When defending a personal injury claim, the best strategy for minimizing damages would seem to be to challenge a plaintiff’s efforts to relate numerous and substantial complaints to the underlying accident. Since the ultimate goal of a defendant is to reduce damages, the best way to accomplish this goal would appear to be to prevent the plaintiff’s efforts to inflate damages.
However, the best strategy—in discovery and at plaintiff depositions—is frequently the opposite. Although it sounds counterintuitive, the goal when a plaintiff is deposed should actually be to encourage the plaintiff to exaggerate or even fabricate complaints. The reason for this is simple: Most juries disapprove of plaintiffs who exaggerate their complaints or try to relate issues that have nothing to do with the accident to their claim. The credibility of a plaintiff is critical, of course, and anything the defense can do to undermine a plaintiff’s credibility will pay dividends in the end.
Chickakly v. Carman: A Case Study in Soliciting Inflated Damages Testimony
The strategy of getting a plaintiff to overstate her injuries at her deposition and then later highlight the exaggerated and unrealistic complaints to a jury was critical to the defense’s successful outcome in Chickakly v. Carman, a case that was tried recently in Massachusetts. In that case, the plaintiff claimed that she suffered permanent and severely disabling injuries as a result of an altercation, and she claimed that the altercation caused her to suffer nerve damage that caused a condition called complex regional pain syndrome (CRPS).
At her deposition, the plaintiff claimed that her life was dramatically affected by her condition, and she provided a description of her problems that came across as being completely at odds with reality. In addition to claiming that the pain that she had was constantly excruciating, she claimed symptoms that would not be expected in a patient with CRPS. Her complaints were completely inconsistent with the expected symptoms of a patient with CRPS.
The plaintiff’s testimony with regard to the exaggerated and fabricated complaints hurt her in two ways. First, her own medical expert had to concede that these complaints were not anything that he had ever heard of, and her testimony completely undermined the effectiveness of her expert. Perhaps more importantly, her exaggerated testimony caused her to be viewed unfavorably by the jury.
The credibility of a plaintiff is critical from the standpoint of both damages and liability. A negative perception that a jury may have of a witness as it relates to damages testimony can also impact how a jury perceives liability issues that are decided on the basis of who a jury finds to be more credible. In the Chickakly case, the fabricated and exaggerated complaints of the plaintiff with regard to damages issues unquestionably impacted the jury’s perception of the plaintiff’s account of the underlying incident. This became evident when the jury returned a defense verdict just 45 minutes after beginning deliberations, on a case that was tried over four days.
The plaintiff’s counsel went to great lengths to walk back the inflated aspects of her claims to try to rehabilitate his client. However, there was nothing that he could do, since it was the plaintiff herself who provided the exaggerated testimony. If the strategy at deposition had been to challenge the plaintiff with regard to her numerous complaints, it is certainly possible that the plaintiff would have backed down. She may have conceded that some of her problems were not related to the accident, or she may have provided a less dramatic description of her injuries. By taking the opposite approach and actually encouraging her to exaggerate her complaints, the defense elicited testimony that presented the plaintiff as completely lacking in credibility. The swift verdict in favor of the defendant was the best indicator that this strategy was effective.
When to Challenge and When to Embrace a Plaintiff’s Complaints
Plaintiffs often do not overstate their injuries, and many plaintiffs acknowledge ways in which they have made a favorable recovery. In those cases, which frequently involve more credible plaintiffs than the one in Chickakly, there is value in developing and highlighting evidence that supports the position that a plaintiff has made a favorable recovery. Any such evidence is critical to defense efforts to challenge the extent of the disability periods that a plaintiff alleges.
However, there are also numerous cases in which plaintiffs will go in the opposite direction, claiming that their life has been ruined. These plaintiffs will exaggerate, and even fabricate, complaints. Where the ultimate effect of this is to cause these plaintiffs to lose any credibility with the jury, these plaintiffs should be allowed, and indeed encouraged, to overstate their complaints. If they “take the bait,” as was the case with the plaintiff in Chickakly, the jury might let them know how they feel about exaggerated claims—when it returns with a quick defense verdict.