Polarizing in Discovery
If you, as plaintiff’s counsel, do a good job at proving liability by way of discovery tactics you will leave the Defense with only their tried and true malingering defense. Essentially, the Defense will try to persuade the jurors that your client is a liar who is contriving false injury claims in an effort to obtain a pay day. The defense will generally pursue this defense when the injury itself is not readily visible by the jurors. The classic case here is the brain injury case. Jurors cannot see a brain injury. Moreover, often times, brain injury victims appear to speak and function just fine while on the witness stand despite their cognitive disabilities. The other cases where you will often see this malingering defense used is in the Minor Impact Soft-Tissue (MIST) case. Here you will have a client who suffers severe and permanent injuries despite what may have only been a minor collision.
When you have cases with facts such as these you need to anticipate the malingering defense. To defeat the malingering defense you need to use polarizing tactics and you need to pursue them early on so as to set your case up correctly. I initially learned of Polarizing tactics from legendary trial lawyer Rick Friedman. The basic polarizing concept is that you force the Defense to take a polarized position. The Defense needs to commit to stating that your client is liar and exaggerator, that your client is telling the truth and is not a liar, or that the defense witness simply doesn’t have enough information to speak on the topic. The Defense will typically try to hide in the middle ground insinuating that your client is a malingerer without actually coming out and stating it. Your job here is to force the defense witness to take a firm position one way or the other. To do this you should start the process with your complaint and then progress with discovery mechanisms so as to force each defense witness to commit to one of these three options.
You can begin this polarizing process in your complaint. The complaint is a useful place to begin because the Defense often will take answering the assertions in your complaint for granted. In the complaint, you want to repeat specific language in your client’s medical records and additionally make allegations which invite the Defense to state its position, that is that Plaintiff is a liar. To do this you begin by making an averment in your complaint that the Plaintiff reported to a particular doctor, followed by another averment as to what type of symptoms Plaintiff reported to her doctor, followed by an averment stating that the Plaintiff “was in fact” experiencing those symptoms, and finally an averment that the doctor made a particular diagnosis and that such diagnosis was a correct diagnosis.
With a bit of luck, the defense will deny some of your allegations. They may make an affirmative allegation that the Plaintiff is exaggerating or malingering here. If you get particularly lucky the Defense will make this assertion before they have possession of the Plaintiff’s medical records. This is very strong for you as you can now argue to the jury that the Defense assumed your Plaintiff was a malingerer before they even had an opportunity to review the medical records. If you get this from the Defendant you are making serious headway. The Defense is now committing to a position. You are drawing a line in the sand. If the Defense is wise they will make denials based on a lack of sufficient information. This of course will not do you much good but it will not hurt you either.
Beyond the complaint you should employ this same polarizing tactic in discovery. I typically find written discovery to not be so effective in personal injury cases, preferring the Deposition as my primary discovery tool. However, written discovery can be effective for polarizing the Defense position. The reason for this is because your goals, when using the polarizing technique, are entirely different from what they would ordinarily be using standard discovery tactics. Ordinarily, your goal in discovery is to get the Defense witness to agree with your position. Here, however your goal is the opposite. Here your goal is to not narrow the areas of disagreement between you and the Defense but rather to widen the areas of disagreement. To do this effectively you should send requests for admission along with interrogatories asking for an explanation for any of Defendant’s denials. Of course, before you send out your written discovery package make sure that the Defense has all relevant medical records so that they can adequately respond to each question. Here, in your requests for admission you can use the same questioning format as you did for your averments in your complaint. Start by requesting an admission that the Plaintiff reported her condition, followed by an assertion that she was actually experiencing this condition, followed by an assertion that the diagnosing doctor made a particular diagnosis, and finally that this doctor made the correct diagnosis.
Remember that all of your requests for admission should be followed by an interrogatory requesting an explanation for anything other than an unqualified admission by that Defense witness. If the Defense gives you an affirmative defense suggesting that your client is a malingerer then follow that up that response with an interrogatory requesting more detail as to the basis for that affirmative defense. If the Defense is smart and gives you an ambiguous answer then you may want to follow up with written discovery aimed at forcing the Defense witness to take a position. The form of you follow up discovery will of course depend on the answers you receive to your initial interrogatories.
The purpose of the polarizing technique is to remove any ambiguous middle ground from the Defense and thus from the jury’s decision-making process. You want the jury to pick from one of two choices. Those are that either your client is legitimately injured and the Defense is taking an unreasonable position or otherwise that your client is a liar who is faking her injuries. If there is a middle ground to choose from the jurors will error on the side of your client being a malingerer. Thus force the jurors to choose from one of these two positions. Once the jurors are left with the two choices you will introduce lay witness after lay witness to testify to their observations of your client. After the jurors have heard numerous lay witnesses testify to your client’s changed behavior from before and after the injury, the jurors will be left with concluding that either all the lay witnesses are part of a conspiracy with your client or that your client has been acting for a period of years now in an effort to bamboozle her entire community or alternatively that the Plaintiff is telling the truth. If you have sufficient lay witnesses the jurors should be persuaded in Plaintiff’s favor.
Beyond written discovery we can use the deposition to accomplish this same polarizing goal. Again we need to force the Defense witnesses to adopt one of the same three positions. That is either that the Plaintiff is lying, that she is telling the truth, or that the witness doesn’t have sufficient information to opine on the subject. If the defense produces a witness who will testify that the Plaintiff is much the same as she was prior to the accident you can still use this testimony to your advantage. Here you can use this witness to secure any agreement that your client possesses character traits which are inconsistent with that of the malingerer. Thus get this witness to testify as to your client’s propensity for honesty, your client’s hard working nature, and so forth. Secure testimony that the witness never observed your client complaining and that the plaintiff didn’t miss any work. Use this testimony against the Defense. The Defense wants to use this testimony to demonstrate that your client is a malingerer. Use this same testimony against the Defense by demonstrating that your client is a fighter. That she continues to go to work despite her injuries. That she doesn’t complain despite her injuries. This behavior is inconsistent with the malingerer. Moreover, jurors like fighters.
As I stated above, Rick Friedman, wrote the book on polarizing. At least he was my gateway to the concept. The information above comes from him. I suggest you read any of his books. His book Polarizing the Case discusses all the material above and much more. Thus for a thorough understanding of these polarizing techniques I suggest you secure this book. He and Patrick Malone wrote another book called Rules of the Road which is also terrific, though focuses on a different topic.