The following is a review by Doctor and Epidemiologist Dr. Arthur Croft of the Trial Guides book Polarizing the Case.
The legal corner today is a book report. 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. These books are published by Trial Guides (www.trialguides.com).
I was impressed by Rick's recent talk at a 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 Rules of the Road yet, 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.
Visit the Polarizing the Case page to learn more.