Common pitfalls that jeopardize case value

How to avoid accidentally sabotaging your case

When you’ve made the decision to go with a good law firm you put your faith and trust in them to handle the legal aspects of the case. While they are taking care of that aspect it is important to make sure you do not do anything to accidentally compromise your case. You need to realize that when you have opened a case you need to be cautious because innocent things can turn into nightmares. Common examples are:

• Talking to insurance companies about the facts of the accident or your injuries

This is always a bad idea, particularly outside the presence of your attorney. Once an attorney is retained the insurance companies will no longer contact you, but before this happens they will be constantly calling and attempting to get a statement. They might offer the promise of a settlement or medical bills being paid, but do not be fooled by this because their one goal is to get you to say something that will destroy your case. This applies whether it is an auto accident or a trip and fall. Speaking to the insurance companies and giving a statement is always a bad idea.

• Talking about the case

You should not talk to anyone about your case, aside from your lawyer. What you say to your lawyer is 100 percent privileged, meaning it cannot be brought out under any circumstances, but what you say to anyone else is 100 percent not privileged. If the case goes into litigation and you need to give a deposition (which is sworn testimony, very common, and usually done in an informal setting like a lawyer’s office) the first question they will ask is “who have you talked to about the case?” You need to answer truthfully under oath, and if you tell them that you spoke with a friend about it, rest assured that will be the next person to be deposed, and if their memory doesn’t mesh with yours, it can completely compromise the case. The safest path is merely to say “my lawyer is taking care of it” and leave it at that.

• Avoid Social Media

This one is difficult for most people in this day and age, but social media is completely discoverable by the defense, meaning that they can explore it and use it against you in your case. This warning applies to all social media not just one related to the case. We were able to achieve a large settlement for a client in a slip and fall case, but it came to light she had attended a friend’s birthday party and had posted videos of her dancing. She had never testified that she could not dance because of her injuries, but she had back surgery and still had residual pain. She had taken painkillers prior to the party which enabled her to function but the images of her on the dance floor made for difficult explaining. Trial lawyers have an expression “if you’re explaining, you’re losing.” Don’t give the defense ammunition even if you have a valid excuse. Avoid social media like the plague when you have a case pending, your bank account will thank you in the future.

• Do not talk to witnesses about the facts of the case

You should always attempt to get the information of any potential witnesses. This is important for the attorney so that they can hire an investigator to get a statement. However, you should not talk to any witness yourself about the facts. If the witness is deposed, they will be asked if they talked to you, and if the answer is ‘yes’, it could create an inference of bias, at best, or at worst they might make it seem like you were attempting to influence their testimony. It is much better to get their information and ask them if it is okay if a lawyer contacts them. At that point, turn the information over to the attorney, who can then get a statement, usually with the help of an investigator who can later be a witness if necessary.

• Don’t say you can’t do something unless you really cannot

While it might often feel like you cannot do something because of the pain it is generally a bad idea to report to anyone, in a statement, in a deposition, or the trickiest because most people don’t think of it, to their doctor that they cannot do an activity. It is rare, except in catastrophic cases, that a person is absolutely precluded from doing an activity altogether. The greatest danger is reporting to a doctor that you can no longer play golf, forgetting about it, then when you take pain meds, you go ahead and hit a few balls at the driving range. It doesn’t matter that attempting to do the sport that you love made you stay in bed for a week from the pain or that you had to ice your back for hours a day, all that is going to matter come trial is the testimony of a caddy who saw you golfing when you told your doctor you could not do so.