The Paper Trail : A Lesson Learned From the Defense



One thing about the life of a personal injury case – it leaves a paper trail from beginning to end. As a matter of fact, whether we like it or not, all aspects of our lives, from birth to death are recorded. From when we check in to when we check out, we are on record. For everything that we take with us there is something that we leave behind. In the archives of the human experience we each have our place – for better or worse. So to when an accident happens, the personal injury victim becomes a statistic and his life is rendered devoid of all privacy. His deepest confidences to physician, employer, teacher or friend may become the subject of direct and cross examination. Every word, every record becomes fair game for dissection and microscopic analysis.

A good insurance investigator and defense lawyer know this and when an accident claim is made they get on the paper trail as soon as possible. When they can, they usually pick up the trail at the accident scene and ride it to all possible directions.

I just completed a case where an insurance adjuster was at the scene of a tractor trailer wreck before the vehicles were cleared from the scene.. This adjuster took pictures, spoke to parties, the police officer and witnesses, and undoubtedly determined what tow truck operators were used, where the vehicles would be stored, the ambulance facility that responded, where the injured were being taken and when the police report would be ready and of course what observations were made by each and what statements were made by either party. I was impressed. But I was also way behind her tracks when the client, retained me through her parents a week later while she was still hospitalized.

The tracks along the paper trail have to fit and when they don’t, you had better find out why. Have you ever compared the date and time of the incident as stated in the police accident investigation report to the date and time on the ambulance report as well as the admitting date and time in the hospital record?

What if after depositions you learned that there were significant gaps in time or even that the emergency room record shows admission on the following day? If your client’s testimony follows and explains the tracks you find on The Paper Trail you develop and enhance credibility, if not, your client gets hurt- its that simple.

With all due respect to our clients who we are called upon to serve, they are often poor reporters of information. If you are relying on their memory and assume that they know what they are talking about since it happened to them, you are not only naive, wrong and headed for disaster, but when it all hits the fan, guess who its all going to splatter on? And why not? You’re the attorney ! You should have known better! Assume nothing, Corroborate everything. You better believe the insurance adjuster and defense attorney are doing just that.

When the client comes in your office and hands you the police report, do you just accept it and assume that you now have the entire report? How do you know whether an addendum was filed the next day or that photos were taken or that witness statements were obtained?

Do you, with camera and tape measure in hand, visit the scene with your client early on before conditions change? At least do you have your investigator visit it, photograph it, the vehicles, equipment or physical conditions involved? Do you use these photographs during witness interviews conducted immediately, and, hopefully before the insurance investigator has gone out to see the witnesses? Or do you just take your client’s description of the facts and assume they are correct?

Do you believe that your client really observed and has total recall of everything that is relevant to your case? The traumatic and totally unexpected event took but an instant. Despite all that has happened to her, you really believe that she can accurately provide all you need to set up the file, answer interrogatories and get ready for depositions?

Yet, how many lawyers do just this and nothing more? But when the roof caves in at depositions the lawyer angrily turns to his client and shouts, “Why didn’t you tell me about that?” Frankly the answer to that attorney is ” Why didn’t you get out from behind your big fancy desk and check?” Your client was hit at 35 miles per hour, carted away in an ambulance and you solely want to rely on her and the police report she brought in as your entire fact source in going forward with expensive, time consuming and, only profitable when done well, litigation? Wouldn’t you agree that such conduct or lack thereof is at least imprudent and probably malpractice?

Why are we not playing the role of the good defense attorney – assume nothing, double check everything and go through your client’s rendition of the facts and the police report with a rake?

You will be amazed at what you find at an accident scene that is not contained in a police report. The standard form police report is not an accident analysis and certainly not an accident reconstruction. Quite often even basic facts such as direction of vehicles is not even correct in the report filed. Speed limits may not be set forth and all lighting or signage is not properly identified or located when in fact it may play an important role in your case.

Following this little discourse is a typical Things to Do List in an auto case. Even as to the client’s complaints, each must be compared against the paper trail of the police report, ambulance record, hospital record, eye witness statements, even what may have been said to the tow truck operator by your plaintiff.

What significance does it have that your client complains at depositions of severe neck pain from the moment of the auto wreck? Let us assume that in a herniated cervical disc case the plaintiff testifies that she gave such a complaint to the ambulance personnel and to staff in the ER. Only after depositions do you get around to checking these reports and note that the only complaints set forth relate to the left elbow. both wrists and right knee. Yet, the treating doctor does record neck pain at the first visit three days later. The defense of course will ask “when did you see your lawyer for the first time” and attempt to establish by innuendo that the neck pain lies only in the creative mind of the client and lawyer. The defense lawyer will have a leg up because credibility has been damaged by your client’s erroneous testimony.

Has the client been less than honest in this situation? Probably not. Quite often there is an incubation period for certain injuries. Symptoms such as the pain radiating from an impinged nerve root due to a herniated disc may not manifest for days or weeks. The disc was damaged by a hyperflexion/hyperextension insult to the cervical spine causing tears in the annulus fibrosis. Gradual herniation of the nucleus pulposis then took place. Further activity aggravated the herniation and there was eventual nerve root compression.

Your client, for example, may have forgotten the pop she felt in her neck at the time of the accident and because you failed to review the biomechanics of the traumatic event in close preparation of the witness for her deposition her recollection was not refreshed as to her body movement at the time of the traumatic event, what she experienced, when and how her neck snapped or twisted and how the pain began to evolve.

If you had only taken the time to review with her what happened to her physically at the time of the traumatic event, the lack of neck complaints in the ambulance report and ER record, she may very well have remembered that her head snapped back and forth on her neck like a shot put on a stick, that there was a pop in her neck and after this she did not notice neck pain until the next day which eventually became worse and finally disabling.

Your doctor could have easily connected up the hyperflexion/ hyperextension insult, the pop in the neck and the delayed reaction to the typical scenario of traumatic vertebral disc derangement and eventual herniation. But you failed to review the paper trail with your client. With her innocent lapse of memory also goes her credibility.

The paper trail does not begin at the moment of the traumatizing event and goes forward. It all has to be compared against your client’s prior medical history. One thing we all have in common, if we have lived long enough, is that we all have a prior medical history. You can not begin to understand your client’s claim unless and until you have obtained all relevant prior medical records.

Only then can you determine what is new, what is not, what is an activation, what has been aggravated, and how the injuries sustained will impact on any preexisting conditions such as high blood pressure, diabetes, a heart condition, preexisting emotional or mental disorders and the client’s activities of daily living.

How many plaintiff’s attorneys obtain any of this as soon as they get the case? How many do it, if they do it at all, only after they have their client certify under oath answers to interrogatories or worse yet submit to depositions?

A short time ago a very savvy law division judge, after reviewing my paper trail outline (similar to the one in the appendix to this article) looked at me and said, “Mike, most of the plaintiff lawyers who come in here are clueless. They just don’t do the prep work and they are getting their socks knocked off by the defense lawyers who do this everyday and are armed with adjusters, investigators and the CIB. Now, with the verbal threshold it is even tougher. I see what could have been good Plaintiffs’ PI cases getting crushed into saw dust.”

You can see by the sample that I have attached, one of the benefits of a paper trail outline is that it compares each piece of documentary evidence against the rest of the file. Do the pieces fit? If one piece does not jibe with another you must find out why. For example, if the hospital record indicates that there was no loss of consciousness, but the office notes of the treating psychiatrist states in the history section ” a period of coma for two hours” and you are arguing a significant Cognitive Dysfunction, you had better explore why the apparent inconsistency before you go any further.

Not only do you want to be prepared before interrogatories are answered and your client’s deposition is taken, but you do not want your treating physician hanging out there with a bad working history upon which he has relied in arriving at his diagnoses and opinion on causality.

Do you just request treating physician reports or do you also get the doctor’s notes and billing file? We are so often surprised to see that the notes refer to complaints, conditions, medical history, tests, and the names of other physicians that our client never told us about and which the report of the treating physician did not mention.

The prudent adversary will obtain by authorization the records of the treating physician after deposition, and then request further authorization for the records of the physicians therein named. You run the danger of damaging contradictions between your client’s deposition testimony and what is set forth in the office records of those other physicians. If only you and your client obtained and reviewed all records before answering interrogatories and attending depositions, those innocent but damaging misstatements could have been avoided.

In a TMJ case, do we get the records of the family dentist and/or orthodontist? The defense expert invariably opines that plaintiff’s condition is not trauma related but the result of congenital abnormalities, overbite, cross-bite, malocclusion, bruxism and host of other conditions but never the result of the forces of the traumatic event caused by the tortfeasor.

We must see to it that the family dentist provides his records to the treating TMJ specialist for review and perhaps even write to the specialist that the patient did not have any history of jaw pain, limited interincisal opening, clicking or other conditions indicative of TMJ Dysfunction.

Generally, the TMJ physician did not examine or treat the patient (your client) before the accident. Your expert must therefore be armed with the prior records, x rays and supported by the favorable opinion of the family dentist as your expert writes his report and testifies from the witness stand.

Prior radiological tests and reports can be a gold mine or a land mine. Often, if you obtain and review them early, you should be able to develop ways to use each to your best advantage. At the very least, your expert will be able to diffuse much of their destructive ability. Many a potentially good aggravation claim was missed because of this failure and the case presented as purely an acute injury failed in the doubting minds of the triers of fact.

The Paper Trail also extends to the records of all carriers who have paid the medical bills of your client whether payments were through hospitalization coverage, major medical or medicare. The trail extends to past and current health, disability and life insurance applications and related physical examinations.

The Paper Trail of your client can take you to a multitude of sources such as the payroll and personnel files of your client with all present and past employers, his or her claims through union benefit programs, his or her military and school records, records of all prior litigation including workers compensation claims, records of divorce proceedings, applications for PIP benefits and the carriers file, temporary disability and social security disability benefit record files, the records of the Division of Motor Vehicles and the Internal Revenue Service.

For whatever reason, we tend to handle our cases as if we were firemen fighting fires. Taking a reactive or defensive course in plaintiffs personal injury litigation is often hurtful, always costly and sometimes deadly.

We must know all there is to know about that person who has called upon us to be his or her attorney ( and we must do this whether the client likes it or not). Many years ago I learned an important lesson about the human nature of a personal injury claimant and his view toward the lawyer/client relationship. After learning of damaging medical evidence from my adversary who made full use of the paper trail, I asked my client why he had not told me of his prior claims when I asked? The answer was simple: “I thought it better that you not know.”

How many times have you we heard that response? By the same token I have seen many an attorney take the approach that it is better not to look too deeply and hope that the defense is too busy. This is nonsense. A good attorney presented with all of the facts early can creatively and ethically mould a persuasive claim. When the information is of such a nature that it cuts to the heart of your claim and there is no way to repair the damage, then you certainly know when and at what price to settle at.

Following the Paper Trail successfully requires planning and persistence. But only after you have assembled all there is to know about your client can you truly advocate his case. Without traveling the paper trail you will never know what is the heart of your case, what is its theme, how to properly present facts and do so in a manner so that which is harmful is adequately diffused and that which is helpful is most persuasively presented.

In the opening of a personal injury file the old saying of well begun is half done could never be more true. The difficulties you will meet when found early will enable you to resolve the matter in the most favorable way.

Happy trails!