There is a famous classic rock song entitled “Dirty Deeds Done Dirt Cheap” and in my practice as a personal injury lawyer for victims we deal every week with dirty, dastardly deeds (not done dirt cheap) by defense lawyers fighting our personal injury clients’ cases. We deal with several large corporations or railroads that find themselves sued for personal injury often. They usually don’t rely on what’s in legitimate doctor or hospital records about the personal injuries. They routinely hire private investigators to stake out and shadow our clients. Yes, just like a movie, depending upon their orders, investigators will sit inside a van with tinted windows with a hidden video camera. Examples of dastardly defense lawyer deeds in personal injury cases are meaningful because sometimes a potential injury client looking to retain a personal injury lawyer simply has no exposure or real understanding of how evil and downright nasty (some) personal injury defense lawyers behave once cases are in court.
There is a famous classic rock song entitled “Dirty Deeds Done Dirt Cheap” and in my practice as a personal injury lawyer for victims we deal every week with dirty, dastardly deeds (not done dirt cheap) by defense lawyers fighting our personal injury clients’ cases. What do I mean, when I say dastardly? What “dirty deeds”? In the last few months I have been busy prosecuting several major personal injury cases. In at least one of them, on our motion well before the trial, the judge ruled that the jury is only to decide the amount of compensation to my client because the corporation is “legally liable” for violations of law to our injury victim. So the defense lawyer representing the big corporation realizes it’s just a matter of how much personal injury compensation the jury will award.
You would imagine that this corporation would now direct its lawyers to sit down and try to settle the case. Wrong! In this circumstance, rather than work seriously toward settling the case, the big corporations often give the defense lawyer a green light to spend any amount of money necessary to smear, attack, confuse or delay. I have had claim representatives actually state that they would rather pay the money to their defense lawyers than pursue more serious settlement discussions. Often they say “your client is in the ozone on what she wants.” Many times, we don’t think so. Because our lawyers handle personal injury cases well beyond Virginia Beach and Norfolk, Virginia, such as in North Carolina, West Virginia and throughout the entire Eastern U.S., we get exposure to not only Va. injury defense lawyers, but many from the other southern states.
Examples of dastardly defense lawyer deeds in personal injury cases are meaningful because sometimes a potential client looking to retain a personal injury lawyer simply has no exposure or real understanding of how evil and downright nasty (some) personal injury defense lawyers behave once cases are in court:
1. Subpoena everything: when cases go into court, it is very customary for lawyers representing insurance companies and corporations to subpoena not only every medical record of a personal injury victim, but medical records before the day of the actual accident or collision, even going back for years. They do not stop with medical records-they often subpoena employment records, high school or college transcripts, psychological consultation records, everything under the sun depending upon how significant the injury victim is injured. Some of these lawyers routinely subpoena the state criminal records available, unless we as the injury victim lawyer object! If we object, the insurance defense lawyer thinks we are trying to hide something, when in fact, what we are trying to protect is a basic level of privacy. Insurance and railroad defense lawyers argue that there is no privacy whatsoever, because of the filing of an injury suit, and it is often up to a judge to decide on the validity of invasive criminal background checks and other privacy issues. One injury defense law firm routinely sends out a list of every medical provider, health insurance company, prior employer, criminal records, and I would not be surprised to see a subpoena for elementary school transcripts from this law firm!
2. Private investigators: we deal with several large corporations and railroads that find themselves sued for personal injury often. They don’t believe what’s in legitimate doctor or hospital records. They hire private investigators routinely to stake out and shadow our clients. Yes, just like a movie, depending upon their orders, they will sit inside a van with tinted windows with a hidden video camera. Better yet, we have been involved in cases where private investigators dressed in camouflage suits, climbed trees, and shot videotape with a telephoto lens from long distances through open fields or woods. We’ve had cases where female private investigators actually walk a dog through our client’s neighborhood, and using false pretenses actually ask a neighbor to walk to their backyard to take pictures of the pretty lake behind it. In actuality, the investigator was trying to get a better view of the backyard of our client’s home next door. Oh, and there are scams that the investigators will pull. Our personal injury clients walk outside in the morning to find one of their car tires has gone completely flat overnight. The personal injury client might not realize that parked down the street is the van with the tinted windows and the investigator with the hidden video camera inside. The investigator is hoping to report back to their superiors that the personal injury victim was able to stoop and bend to change the tire. During this type of personal injury surveillance, the investigator will also follow the injured person to or from medical or physical therapy appointments checking out the physical capacities of the injury victim. They pull simple scams to learn of appointment dates, at times calling the office and pretending they are the client. We simply tell our clients do not attempt physical activities beyond the physical duties or capacities that they are given by their treating doctors. We have to be alert to the existence of this type of surveillance and to videotape to prevent it being edited falsely or used in any improper way by the defendant. We had one case where the defense claimed it was our client, and was his cousin instead in a few of the images. Amazingly, court procedures sometimes protect a defense lawyer from producing these videos or photos, and we must request that the judge order them produced. Each state and federal court has different rulings on when or whether the materials must be coughed up. The rules should be crystal clear and hopefully the Court rules will be modified in the future.
3. Harassment of the doctor-none of our clients had any idea how evil and paranoid lawyers for corporations and insurance companies can behave simply because your treating doctor or surgeon believes you are disabled or that your serious injuries are caused by an accident or collision. The flavor of the year is that these lawyers argue that the doctor is simply a pawn of the victim’s lawyer, and that the doctors are just a mouthpiece for a lawyer. The conspiracy theories of the defense lawyers know no boundaries. In other words, you would think that the court process and conducting a deposition of a treating doctor or surgeon allows the defense lawyer to fully probe the basis of the doctor or physician opinion about impairment, disability, and a personal injury client’s ability to return to a prior job. Wrong! Lately, what the defense lawyer (for an insurer or company) will do is try to harass the doctor is issue a ridiculously long and cumbersome subpoena to the treating doctor or surgeon asking them to produce financial information, going back several years relating to their medical practice. So, the dispute isn’t about producing the medical file on the patient, it’s about financial data. The subpoena will try to force the doctor to engage in some major analysis, administratively, of the number of referrals the doctor had from a personal injury lawyer or from the personal injury victim’s lawyer or law firm. The insurance defense lawyer or corporation’s defense lawyer has a secret agenda: try to harass every doctor who was willing to treat a personal injury victim so that they will hate the legal system and every personal injury lawyer due to the harassment. This is a serious issue that requires protection by judges due to the improper motives of defense lawyers, as they can get this basic information in a standard deposition. Often, we go into a court hearing, and ask judges to quash or prohibit this type of harassing subpoena, which of course is barely relevant to any main issue which is really the extent of a person’s injuries. The subpoena only goes to the side issue of whether a doctor is accommodating to personal injury victims or their lawyers as opposed to insurance defense lawyers or their agenda. What gets lost in this harassing subpoena strategy is the real issue is simply whether the person is injured from the accident, the permanency and prognosis.
4. Motion to exclude the personal injury victim’s doctors-the defense lawyer looks for any way to try to convince a court to prevent a personal injury victim’s treating doctor or surgeon from giving a deposition or from even providing testimony in support of the patient’s injuries. How? The defense lawyers try to dream up anything that can be presented with a straight face. Sometimes they claim a personal injury victim’s doctor is trying to testify about something that was not in their records or office notes, or they argue that some part of a doctor’s opinion had to be disclosed under a court rule or deadline, and wasn’t disclosed adequately or with enough detail. We as personal injury victim lawyers have the burden of proof and must be careful to set forth opinions of doctors and other experts by a deadline. The defense lawyers will look for any angle available that has nothing to do with the legitimate opinions of the doctor. As a matter of fact, we routinely must attend depositions of doctors and experts where the defense lawyer does not ask the doctor or expert one single question relating to their opinions about the patient for up to an hour to two hours into the deposition. Most states, amazingly, have no time limit the deposition of a doctor or expert. If a lawyer feels that the insurance or corporate defense lawyer is abusing the process, it’s usually too late or creates more work, because it requires a personal injury lawyer to simply terminate a deposition and argue in a later hearing before the judge that the defense lawyer is taking too long or is abusing the process. This court hearing route can actually take more time away from the case for the personal injury lawyer and let’s remember that virtually all defense lawyers are paid by the hour and the more hours they bill, the more they earn.
5. Filing numerous meritless court motions-another strategy of insurance or corporate defense lawyers is to file a whole bunch of motions in court requiring hearings. Many times, the motions are virtually frivolous, but these lawyers are careful to allege just enough in the motion so that we as personal injury lawyers cannot convince a judge to sanction or penalize them for filing such motions. It is very unusual for a judge to award court costs or attorneys fees to the personal injury victim’s lawyer for having to battle what we believe is a frivolous motion. It is rare to obtain costs to fight such a frivolous motion. Often, the defense lawyer thinks that anything that is tying up a personal injury lawyer in court on a side issue is good because it is distracting the personal injury lawyer from concentrating on damages and how to argue to a jury for a fair award for the victim. We know that this happens, and we will not take our eye off the ball: presenting evidence that supports the maximum compensation for our personal injury victim/client. We will continue to fight and follow the high road for our clients.
We will not stoop to the level of filing harassing motions, unnecessary court pleadings, or presenting evidence that is not properly supported by medical or expert opinions. These examples did not come up in every case, because many cases actually do get settled without the filing of a lawsuit, and in those situations, only the private investigator surveillance outlined above would apply because the corporation being sued can order surveillance even if no suit is pending.
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