In most sports, football especially, you’ll hear coaches and analysts say, “The best defense is a good offense.” In the courtroom, you’ll find attorneys applying a similar strategy: going on the offensive to defend their clients.
In football, that maxim means that when your team dominates play, it keeps the opponent’s offense off the field where they can’t rack up points.
In the courtroom, a “good” offense means attacking the character and credibility of a plaintiff and in so doing, devaluing the extent to which their lives have been damaged. It’s not about proving the correctness of the defendants’ actions, but tearing down the victims’ plight.
What is truth and what is malingering?
One of the most pernicious ways defense attorneys try to disparage a personal injury claim is by accusing the victim of malingering. It’s a tactic that doesn’t rely heavily on evidence, but that doesn’t mean it won’t sway a jury.
When the defense brings up malingering, it is claiming that the plaintiff is either feigning an injury altogether or exaggerating its consequences.
The defense may trot out a doctor—normally a physician or a psychologist—who will testify that, according to his or her experience, there is no physical reason why the victim should be continuing to suffer from acute pain or disability resulting from the “accident” for which the defendant bears some responsibility.
The expert may even have examined the victim—physically or psychologically—and, based on the results of the testing and the expert’s own analysis of those results, claim to have “evidence” that indicates malingering is likely.
There is good reason to be skeptical of such claims: While it’s true that malingering is an accepted psychiatric diagnosis, there is no definitive method to test for it, physically or psychologically. The results are subjective at best, and the tests are just another example of what we call “junk science” in the courtroom.
Essentially, the defense’s medical expert is accusing the plaintiff of lying, without specifically using that language. In fact, in most cases, medical experts carefully avoid using the word “lying,” because such accusations, made openly, can make jurors more sympathetic to the victim. So instead, he or she calls it a case of malingering.
It’s a subtle and devious way of insinuating to the jury that the plaintiff doesn’t deserve compensation because their pain and suffering are not as bad as he or she would have people believe.
Such accusations can be devastating to a plaintiff’s case, unless the plaintiff’s attorney is ready to counter them—which, we always are.
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Putting the defense on the defensive
As personal injury attorneys, we see this type of junk science far too often. and while we may not be able to dispute medical experts’ credentials, we can hold them accountable for their words.
We press them to explain themselves. What do they really mean by using the term “malingering”? How do they distinguish malingering from lying? Where is the medical evidence for malingering? What are the witness’ credentials for making a psychological—rather than purely medical—evaluation of the plaintiff’s condition?
Just because a doctor can’t find a medical cause for pain doesn’t mean there isn’t one.
And, regrettably, it’s not unheard of for medical experts to manipulate the results of a psychological test in favor of the defendant. The questions are sometimes asked repeatedly, until the defense gets the answers it needs. Even the way in which the results are interpreted can be used to sway the jury into believing what can’t be proven with valid evidence.
The malingering defense is not fair to victims, but it’s a defense tactic used with alarming frequency in personal injury cases. It’s an example of how even further injustice can be inflicted in the courtroom, and it is part of the reason why we’re fully committed to protecting our clients.
We give juries good reason to be skeptical of a defendant who relies on accusations of malingering, and we want jurors to see the malingering defense for what it really is: an insult without evidence. If you suspect that you have been a victim of negligence resulting in personal injury or a wrongful death, please give us a call.
Connect with us—we’re here to help.
The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.
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