When dealing with 'invisible injuries,' credibility is paramount
This article was produced in partnership with Thomson Rogers LLP
In an environment where personal injury cases in general are more challenging to prove and insurers are taking harder lines, the importance of credibility when litigating chronic pain cases cannot be overstated.
“It’s paramount because these are ‘invisible injuries,’” explains Sarah Naiman, partner at Thomson Rogers LLP. “A case turns in large part on whether or not your client is going to be believed.”
Given chronic pain’s inherently subjective nature, there are a few strategies employed by plaintiff-side counsel that help establish credibility. For example, while it’s easy for others to see a fracture on an X-ray or a brain bleed on an MRI and satisfy themselves that there’s been an injury, verifying chronic pain is not so black and white.
As always when dealing with medical issues, it’s critical to work with experienced and impartial experts to assist the trier of fact in understanding the issues. Specific to these cases, a physiatrist who can comment on how pain impacts different aspects of a client's life is exceptionally useful.
“Another strategy in chronic pain cases is to show the steps the client has taken to try to address their chronic pain, such as injections, medical appointments, and medications,” Naiman says. “Without that, it’s very easy for a trier of fact to think ‘no treatment, no problem.’”
A jury is often harder to convince in a chronic pain case as its members tend not to have as much experience with the subject matter as a judge, making it pertinent to keep concepts simpler and more straightforward than in a judge-alone trial. In either instance, however, it comes down to conveying the legitimacy of the issue.
Working with a plaintiff on how to communicate their truth effectively is top-of-mind for Naiman in a chronic pain case. When dealing with any injury, but especially an invisible injury, she encourages the client to refrain from using social media. When people post about their lives online, they show a snapshot of their reality — but it often hurts a case, she warns. When a client is complaining of debilitating chronic pain, “it can be very harmful to post pictures from a holiday or a night out,” she explains.
People can also unintentionally back themselves into a corner when giving evidence by using words like "can't", "never" and "always." These terms are absolute terms and can make people appear dishonest even when that wasn't their intention: stating "I never shovel the snow" instead of explaining that they tried once, unsuccessfully, is an example of this.
“I encourage my clients to use words and phrases with a bit more flexibility, so refining their comment to ‘I almost never shovel the snow’ or ‘I have difficulty with shoveling the snow,’” Naiman says. “It sounds simple, but honesty really is the best policy.”
