Suppose that you're in the middle of a trial and have just finished your direct examination of your client, who claims he suffered serious injuries to his back and legs in an automobile accident caused by the defendant and that it now hurts tremendously to walk any distance at all. You sit down at the counsel table with a smile on your face, metaphorically patting yourself on the back for doing such an excellent job. You even had a few of the jurors wiping their eyes as you had your client describe the horrific pain he was in. You had prepared your client thoroughly for direct examination and had gone through several trial runs and it is about to pay off.
Then, while cross-examining your client, the defense lawyer asks your client: "Mr. Jones, isn't it true that in 2017 you claimed that you suffered injuries to the same part of your body in an automobile accident?" Your client fidgets uncomfortably on the witness stand, takes a drink of water, clears his throat, and then in a quiet meek voice responds with one word: "Yes."
You are stunned by this disclosure. Your client never mentioned this prior accident and injury, thinking -- correctly -- that it might hurt her current case. When the defense finishes its cross examination and it is time for you to do your redirect examination, you don't know what to say to minimize the damage this testimony has caused your case. You are caught unawares and are completely at a loss on how to minimize the damage.
For this very reason, it is vital that from the very beginning of your relationship with the client you impress upon him or her the importance of being completely open and honest with you about everything that may have a bearing on the current case. Plaintiff's lawyers are constrained in the extent of their investigation of the client's background and preparation of the current case by budgetary concerns and have to believe much of their client's narrative at face value. The insurance company, on the other hand, seems to have an unending supply of funds available to it and will use as much of it as necessary to investigate not only the present claim but also the client's past. And the more serious the case the more money the insurance company is willing to spend on investigators, medical experts, and others to find out about your client's history and current condition.
We have all heard about the client who states that he is so injured by the defendant's negligence that he can barely walk, but the insurance company's investigators have videos of him playing a vigorous game of basketball with no apparent physical disability. Or the insurance company's search of criminal records discloses that your client was charged with fraud and was found guilty of passing bad checks or other conduct that bears on his or her credibility. Some information can adversely affect the case; other evidence can completely destroy the case.
If the client tells you upfront about everything that may affect the case, especially those things that may reflect badly upon his or her case, reduce the amount or recovery, or probably result in a defense verdict, you can form a strategy to deal with it at trial. One of the best ways of defusing potentially harmful evidence at trial is to be upfront with the jury and inform them of the adverse evidence as soon as is practicable. This has two benefits: First, it leads the jury to believe that it can't be that bad because you are disclosing it to them so early. Second, the jury will see you as a straight shooter willing to tell them the good, the bad, and the ugly about your case. This has the positive effect of the jury's believing your version of the case over the defense lawyer. Indeed, in opening statement you may wish to make a pact with the jury that you will present all of your case, not hold anything back in return for their consideration of all the facts.
If your client had a preexisting injury to the same area of her body, you can research the previous injury to demonstrate that she was completely recovered from that injury before the defendant's negligence caused her harm. If your client had not recovered fully from the preexisting injury, or it was a chronic condition, you can argue that it is all the more devastating to your client because it increases her pain or lack of mobility that much more. For instance, if your client had lost his left arm in a previous accident and is now claiming that his right arm had to be amputated because of the defendant's negligence, you can argue that it is that much more important and disabling of an injury to your client. You could even consider using the aphorism, "In the land of the blind, the one-eyed man is king."
The main takeaway of this article is to stress the importance with your client of being open and honest with you, especially about issues that the client feels will hurt his or her case. Quite often the thing that your client fears will harm the case is irrelevant and not be admissible at trial to begin with. And even if it does have a negative bearing on the case, at least you are prepared to formulate a strategy to deal with it, or if it is irreparable damage to allow you to settle the case or withdraw from representation.