Polarizing the Case:
Exposing & Defeating the Malingering Myth

by Rick Friedman

List Price: $95 (hardback)

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Table of Contents
Introduction

Reviews

“Stunningly simple in concept yet more effective than any other approach I’ve seen to neutralize unfair defense doctors.” - Karen Koehler, author of Litigating Minor Impact Soft Tissue Cases, and listed in Best Lawyers in America.

“Rick Friedman’s stunning effort, Polarizing the Case: Exposing and Defeating the Malingering Myth unmasks feelings that all trial lawyers have no doubt had at some level in every case.” - Michael J. Bidart, Esq., Fellow, International Academy of Trial Lawyers, American College of Trial Lawyers and American Board of Trial Advocates, listed in Best Lawyers in America. more...

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“Rick Friedman’s stunning effort, Polarizing the Case: Exposing and Defeating the Malingering Myth unmasks feelings that all trial lawyers have no doubt had at some level in every case. Unfortunately, most lawyers lack the courage and direction to confront these common defenses head on and expose them for what they usually are – fraud on the jury. We are extremely fortunate as trial lawyers to have thoughtful and generous colleagues like Rick Friedman amongst us. And, I think we owe it to our clients to carefully follow his advice. Positive results are sure to follow.”

Michael J. Bidart, Esq., Fellow, International Academy of Trial Lawyers, American College of Trial Lawyers and American Board of Trial Advocates, listed in Best Lawyers in America..

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“Remember the old Raid commercials where Mr. Raid sprays the dirty slime bugs, sending them screaming and cursing to a horrifying, shrivelling, screaming death?” - David Ball, Ph.D., author of David Ball on Damages. more...

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“Remember the old Raid commercials where Mr. Raid sprays the dirty slime bugs, sending them screaming and cursing to a horrifying, shrivelling, screaming death? Well, Rick Friedman, co-author of the spectacularly essential Rules of the Road, has now given us the equivalent of Mr. Raid to use against the lethally dangerous slime side of the medical profession: those lying docs (and the defense attorneys and insurance companies who make them rich) who swear through their lying (and hopefully rotting) teeth that your client is malingering, or suffering from litigation syndrome, or has hardly any pain. With Friedman's Polarizing the Case under your belt, you will find yourself eager for such attacks. Friedman teaches you in clear, specific, no BS terms not just how to 100% undermine those slime attacks, but also how to turn them into your greatest verdict money asset. The techniques in Polarizing the Case work so well and are so much fun to use that you will thank your stars that you are a plaintiff's attorney, you will thank Friedman for writing the book, and you will most of all thank me for making you read the book.”

David Ball, Ph.D., author of David Ball on Damages.

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“[This book] is the Sun Tzu treatise for attacking and defeating common defenses in personal injury cases.” - Jim Perdue, Fellow of the International Society of Barristers, American College of Trial Lawyers, The Inner Circle of Advocates, and the author of I Remember Atticus and Winning with Stories. more...

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“Rick Friedman’s “Polarizing the Case: Exposing & Defeating the Malinquering Myth” is the Sun Tzu treatise for attacking and defeating common defenses in personal injury cases. Rick offers detailed battle plans for discovery through depositions of plaintiff and defense experts, how to innoculate the jury during voir dire examination and opening statement against the defense contentions of ‘exaggeration’ as well as to how best re-frame the issues during the examination of witnesses.

Finally this legendary trial lawyer demonstrates how to turn the malingering defense on the defendant in the chapters and illustrations dealing with closing argument.

This book is an essential part of the library of the lawyers who champion the cause of ordinary citizens injured by the wrongs of others.”

Jim Perdue, Fellow of the International Society of Barristers, American College of Trial Lawyers, The Inner Circle of Advocates, and the author of I Remember Atticus and Winning with Stories.

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“Rick Friedman’s important new book is essential for all lawyers who have suffered the sting of hearing their clients’ real injuries mocked, minimized and maligned.” -Michael Koskoff, Member of the Inner Circle of Advocates, and listed as one of The Best Lawyers in America more...

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“Rick Friedman’s important new book is essential for all lawyers who have suffered the sting of hearing their clients’ real injuries mocked, minimized and maligned. Friedman’s creative approach provides both the philosophical context and step-by-step guide to defeating unwarranted and insidious defense claims of ‘malingering’, ‘secondary gain’, ‘conversion reaction’ and ‘exaggeration’. It includes concrete examples of how to defeat these claims from pre-trail discovery, deposition of the IME doctor, voir dire examination and the trial itself. It will serve as a valuable resource for every lawyer handling personal injury cases.”

Michael Koskoff, Member of the Inner Circle of Advocates,
and listed as one of The Best Lawyers in America

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“I read lots of books about lawyering, and after awhile a lot of it starts to sound the same. The same recycled ideas, the same rules, the same strategies. But every now and then someone comes along with something that breaks the monotony. Rick Friedman’s newest book, Polarizing the Case, is one of those.” -Mike Abourezk, Member of the Inner Circle of Advocates, Best Lawyers in America, Steven J. Sharp recipient, and named Trial Lawyers College Mid-West Warrior of the Year Read Review and Interview with the author

“[It] is the bible for anyone trying cases in today’s climate. It covers all aspects of trying a personal injury cases today.” -Brian Panish, Member of the Inner Circle of Advocates, the International Society of Barristers, and lead counsel in the largest personal injury and product liability verdict in American judicial history ($4.9 Billion)

“Every lawyer who represents injured souls must read this book.” -Eric Fong, Instructor and President of the F-Warriors, Trial Lawyers College more...

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“Every lawyer who represents injured souls must read this book. It is the answer to the insurance industry’s blasphemous, wickedly financed campaign that lawsuits are frivolous and our good clients are malingers. The depth to which Friedman analyzes this heinous defense is astounding. Even more so is the clarity and simplicity with which he writes. If we all read this book and follow Friedman’s blue print on how to tactically manage the malinger defense, a wave of victories will eventually stamp out this most offensive defense tactic. Thanks Rick for writing such an important book!”

Eric Fong, Instructor and President of the F-Warriors, Trial Lawyers College

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“Polarizing the Case teaches lawyers to turn tables on malingering defense.” -Steven L. Shaw, Editor-in-Chief, Washington State Trial Lawyers Association Trial News Read review

“If you have been dissatisfied with the amount of the verdicts you have been getting or would like some fresh ideas to improve your presentation of damages at trial, Polarizing the Case is worth your time and money.” -Todd J. Bloomfield, The Advocate, February 2008 Read review

“Polarizing is a great book for experts, even though it was written for lawyers.” - Dr. Arthur Croft, author of Whiplash Injuries: The Acceleration/Deceleration Syndrom. more...

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“Rick Friedman is the author of some best-selling law books, including Rules of the Road and, the one in my hand: Polarizing the Case: Exposing & Defeating the Malingering Myth. I was impressed by Rick's talk at a recent seminar and spoke with him briefly afterward. I took the book to Cabo and was literally locked onto it from the plane ride down. I haven't seen his first book, but Polarizing is a great book for experts, even though it was written for lawyers. Let me try to put it into a nutshell here.”

“Rick tells us that the general approach used by the defense more often than not in PI cases these days is to insinuate malingering on the part of the plaintiff. Juries, of course, will never forgive a fraud. They don't usually come right out and state it that way. Instead they do it by innuendo because, as he points out, that's really all they need to do. Besides, accusing the plaintiff of outright deception can backfire on lawyers. So they need only say, ‘Ladies and gentlemen of the jury, you'll hear a lot of facts and claims in this cases. But you'll also find a lot of facts that don't quite match up. I'm sure you'll know what to do in that case.’ You get the idea. In many cases, these facts that don't match up might be actually explainable. For example, in her depo, the plaintiff might have said she went to the hospital at 9 AM, but hospital records might have it as 11 AM. I may be that she sat in the waiting room for two hours. But Rick suggests that, while these disparities might be appropriate to deal with, a more direct approach is to polarize the case. So he starts out by telling the jury that they will hear a lot of insinuation, innuendo, etc. They will hear from experts on both sides. But this case really boils down to one basic question: is my client a fake, a liar, and a fraud. If she is, then you should send her away with nothing. But if she is not, you should give her an award that will be fair and that will not allow defense from profiting from this kind of attack.”

“In this wonderfully innovative book, of course, written for lawyers as it is, he offers them advice concerning how and when to introduce this polarization into the case. It might begin in voir dire, or, more often, in opening statements. The reason the book is of interest to experts is that he discusses ways of forcing the opposing expert to make a commitment, and this is critical. Most experts will make comments that allude to malingering or somatoform disorder or secondary gain. They might use those terms or couch their comments in more vague terms. He recommends that the lawyer get a copy of the DSM IV and look those terms up. Why? Because the terms are often used incorrectly and recklessly by defense experts. For example, according to the DSM, ‘The essential features [of somatoform disorder] are recurrent and multiple somatic complaints of several years' duration for which medical attention has been sought but which are apparently not due to any medical disorder. The disorder begins before age 30 and has a chronic but fluctuating course.’”

“There are two ways of approaching this. The lawyer could just trap the expert into affirming the (incorrect) somatoform disorder assessment in his depo and then show how he is dead wrong in that assessment at trial. Or he could go after him in the depo to try to force him to back down and, in the best scenario, to concede some admissions for the plaintiff. The risk now, however, is that it gives the expert a change to better prepare for trial. In any case, questions would be, is there any evidence that the condition existed before the MVC? Did it really start before age 30? Are there multiple complaints? Are there really no medical explanations for the complaints?”

“The DSM tells us that malingering is the ‘voluntary production and presentation of false or grossly exaggerated physical or psychological complaints . . . produced in pursuit of a goal . . . such as to avoid military conscription, to avoid work, to obtain financial compensation . . .’ etc. This is essentially deliberate lying.”

“The point is, the lawyer forces the expert to either make a stand or retreat. ‘Is my client malingering? If so, then you are saying she is a liar, are you not?’ ‘When did she begin malingering? When the MVC happened? Was she malingering when she went to the hospital?’ Likewise, when did the somatoform disorder start? You get the point.”

“Friedman likes to use lay witnesses to make the case that the plaintiff is not a liar, a fraud, and a cheat. And, although many lawyers don't like to do this and the defense might object, the defense will have actually opened the door to this kind of witness when they alleged malingering. Because, while, normally, character witnesses would not be all that relevant in an injury trial, now that the issue has essentially been boiled down to one of character and veracity, character is suddenly a real issue. So he brings in coworkers, friends, pastors, husbands, etc. to tell how the plaintiff never had problems before, is a hard worker, is honest and caring, a Girl Scout Leader, etc. It shows that the defense position is without merit and is unfairly and wrongly judgmental, that the defense expert's opinions are mere net opinions. He had no tangible evidence for a somatoform disorder or malingering diagnosis and his assumptions were wrong. The case is effectively polarized and the defense version of reality is dismantled. If she's not likely a liar, a fraud, and a cheat, then the opposite picture must be true: she has an injury and is disabled or in constant pain, etc. The paperback is $85, and the information makes the investment a sensible one.”

Dr. Arthur Croft, author of Whiplash Injuries: The Acceleration/Deceleration Syndrom

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With Rules of the Road Rick Friedman (with co-author Patrick Malone) changed the way thousands of plaintiff lawyers try their cases. In the process, he established himself as one of the nation’s leading tacticians in the battle for civil justice.

Now, with Polarizing the Case, Friedman teaches us not to fear allegations or insinuations that our client is malingering or exaggerating injuries. Instead he provides, in his own words, “a guidebook for wrapping the malingering defense around the neck of the defense lawyer and strangling him with it.”