I’ve been reading Bryan Stevenson’s book Just Mercy. Recent events across our country highlight the injustices described in this book and add to the immediate urgency for a more just system. It’s especially difficult to read Just Mercy when you are familiar with many of the cities and counties where the injustices in the book occurred. It’s also especially difficult to read the book when recent events across our nation remind (everyone) that systematic injustice and racism remain current events. Changes are needed.
When I started this blog several years ago, I committed to discussing solely personal injury issues. For the most part, I’ve kept that commitment. This week, it is especially difficult to do so. But, I’m going to try.
Although criminal, the cases in Just Mercy raise serious issues for the entire justice system, including our personal injury practice. Fairness. Equality. Justice. These are essential and broad issues. Much work needs to be done on these issues. We should insist our justice system constantly work toward the real justice that can only be obtained when people are treated fairly and the truth valued.
Our clients don’t face the death penalty or years in jail. But, they still deserve a fair process. Often, their very futures are at stake. Last night, I was reading a chapter in the book involving a case that also raises serious questions we frequently face in our Alabama personal injury cases. I’ll briefly mention the case and then discuss the issue in personal injury terms.
The case involved a defendant accused of capital murder. The defendant suffered serious mental illness. That’s a huge issue for his case and trial. Any legitimate medical expert would have clearly concluded the defendant suffered competence issues. Yet, at trial, the State presented a psychology “expert” who testified the defendant was a faker and malingerer. This so-called expert worked for the State at one of its facilities. Later, evidence revealed the expert a fraud who faked his own credentials. The book tells the story in full. When I read about the case, I immediately questioned how the State ever hired this fraudulent expert. How? I was intrigued and read more about this fraudulent government expert on the Internet.
How does this story apply to personal injury work? Ask yourself — How often do biased or fraudulent experts provide opinions in civil courts as well? How often do paid, biased medical or disability experts appear on behalf of insurance companies trying to defeat valid claims?
Malingerer. Faker. Those are the buzz words many personal injury lawyers see time-after-time on the short reports issued by insurance experts. Like the psychology “expert” in Just Mercy, you occasionally see an expert whose very credentials are completely fraudulent. But, this is rare. I’m always reminded of the “vocational” expert I met in a workers compensation case years ago. My client suffered a horrible injury when a trailer collapsed on him. He was clearly disabled from the accident. So, I was surprised when the insurance company suddenly designated an employment expert from out-of-state. I did a little digging. What I found was a guy who moved from Las Vegas to Florida leaving a string of fraudulent business ventures behind him. From his home in Florida, he offered testimony for insurance companies in work comp cases. His testimony was always the same — He claimed to have found “jobs” for the injured person and then claimed the injured person made no effort to do them. His goal was simple. Paint the injured worker as someone who did not want to work. It was all a lie. From his credentials to his process, it was all lies. Everything. We won the workers’ compensation case. Then, I sued him. Why did I sue him even though we won our case? How many hurt individuals did not get a fair trial because of him? When I contemplated that question, I felt I had no choice.
Yes, the occasional “expert” may have fraudulent credentials. While not fully fraudulent, more than a few “experts” embellish their credentials. Beyond qualifications, what are some red flags for false medical experts? Here are four you might see:
- These “experts” rarely (or never) actually treat patients. While a few of these so-called experts treat a small number of patients, many of them do not. Instead, they make their living spouting opinions for the people who pay them.
- These “experts” often write reports that look like cookie-cutter versions of each other. What do I mean? Their reports often look like forms that say the same thing. Turn on computer. Input the person’s name and some vital data. Hit print. Here comes the standard report questioning the person’s credibility. What you need to understand is that these insurance experts rarely make some concrete statement. Instead, it’s a game where their goal is simply to cast a shadow over the person. Vague implications of malingering, exaggerating, or inconsistent reporting will do.
- These “experts” typically work for one side. Think about it. The medical expert saw hundreds of people. Yet, he suspects all were malingering? I’m reminded of a neuropsychologist expert from a prior case who started his career as a legitimate professional associated with a research hospital. He actually wrote some good research articles. Somewhere, along the way, he left the school and established his own practice. From there, he began providing reports for insurance companies. Suddenly, his reports started claiming patients could not have suffered traumatic brain injury (TBI). Rather, all the people he saw were simply depressed or exaggerating their problems. Need to cross-examine this expert? Take a look at his research before he started working for insurance companies. I read his research articles before cross-examining him.
- These “experts” depend upon insurance companies for most of their income. When an expert claims to be a doctor but earns the bulk of his or her income generating reports for insurance companies, it’s a problem. Does anyone really believe that expert will be fair? Years ago, Allstate Insurance Company hired a so-called “expert chiropractor” from Florida in one of my Alabama car accident cases. I did a little digging and quickly obtained multiple transcripts of his testimony from prior cases. These transcripts were fascinating. I found multiple incidences where this expert answered identical questions differently based on the particular case. Basically, he changed his answer to suit the insurance company. When I prepared to cross-examine him, it was easy. I could simply ask the question, see how he answered and then present the contrary testimony from one of his prior cases. It was fun! Things went south for the insurance company quickly.
Biased experts are a real issue in personal injury cases. The insurance company wants an expert to cast a shadow of doubt. What can you do in accident cases?
First, why are you submitting to an evaluation by a potentially biased medical expert? You may not be required to attend the appointment. I’ve seen too many cases where other lawyers allowed their clients to submit to these evaluations without discussion. Why give the insurance company a chance to cast its shadow of doubt if not necessary. This is an issue you should discuss with a skilled attorney before agreeing to see a defense expert.
Second, why should you simply accept the insurance company expert’s opinions? The insurance company will use its biased expert for two reasons. The obvious reason is to defeat your claim at trial. Another more common reason exists — To negotiate down any potential settlement. Since most cases settle, this is the most common reason. A skilled attorney can study the expert’s opinions, advise you concerning their impact, and prepare to fight against them in court.
In all cases, justice requires a commitment to people — to the people whose lives are before the court. I certainly understand courtroom experts can legitimately disagree. But, we should never tolerate false experts who play upon the suffering of others. I watched a presentation by trial lawyer Mark Lanier where he discussed one of his prior trials. During closing arguments, he drew a little jukebox. He said the defendant’s false expert was like that jukebox — You put your money in and it plays whatever tune you choose. I could never adequately re-state Mark Lanier’s closing. But, the jukebox image has never left me. Real experts should provide credible opinions. They don’t simply sing the same tune as the insurance company.
From its office in Huntsville, the Blackwell Law Firm helps people across Alabama who have suffered a serious personal injury. If you have questions about a personal injury matter, let us know. Consultations are always free and confidential.