A good lawyer is your advocate, not your judge. Your attorney’s job is to present your case as effectively as possible. To do that, the attorney needs to know everything — the facts that help you and the facts that do not. A prior injury to the same body part. A previous car accident. A workers’ compensation claim from years ago. A gap in treatment because you lost your health insurance. A social media post you regret. An arrest. A substance abuse issue. These facts will come out. The only question is whether your attorney learns about them from you or is blindsided by them during the carrier’s investigation or at a deposition.
This is one of the most commonly violated principles in personal injury representation, and it is one of the most consequential. The attorney-client relationship depends on complete candor from the client. When the client withholds information — whether out of embarrassment, fear, or a belief that the information is unimportant — the attorney cannot prepare for it. The carrier, which conducts its own investigation, does not share that limitation. What the client conceals, the carrier finds. And what the carrier finds, the carrier uses.
The carrier will investigate your history
Insurance companies routinely obtain prior medical records, prior claims history through ISO ClaimSearch databases, and prior litigation records. ISO ClaimSearch is an industry database that tracks every insurance claim filed anywhere in the country. If you filed a workers’ compensation claim in 2015, it is in the database. If you filed a prior auto accident claim in 2018, it is in the database. If you had a slip-and-fall claim in 2020, it is in the database. The carrier pulls this information within weeks of receiving your claim.
Do not try to hide past accidents from your lawyer. Do not try to hide past injuries. Do not try to hide any past lawsuits you have had or claims you have filed. If you have a substance abuse or alcohol problem, bring it to your lawyer’s attention. The carrier will find this information. If your attorney does not know about it and is surprised during discovery or at a deposition, the damage is compounded. The issue is no longer just the prior history — it is the fact that it was not disclosed. Now the case has two problems: the underlying fact, and the credibility problem created by the concealment.
Prior injuries do not bar your claim
New York follows the eggshell plaintiff doctrine. The defendant takes the plaintiff as they find them, including pre-existing conditions. If you had a prior back injury that was asymptomatic before the accident and became symptomatic again because of the collision, the accident aggravated a pre-existing condition — and that aggravation is compensable. But this argument only works if your attorney knows about the prior condition and the treating physician addresses the aggravation in the clinical records.
An attorney who is blindsided by prior medical records at a deposition cannot make the aggravation argument effectively. The story the attorney has been preparing — that this accident caused a new injury — is suddenly contradicted by prior records showing the same complaint years earlier. The defense attorney has the records ready. The plaintiff is caught off guard. The case value drops instantly. If the prior injury had been disclosed from the beginning, the attorney could have prepared the aggravation theory, coordinated the medical evidence to support it, and prepared the client to testify about the prior condition in a way that strengthens rather than undermines the case.
Deposition testimony is given under oath
At your deposition, the defense attorney will ask about your prior medical history, prior accidents, prior claims, and any prior treatment to the same body parts you are claiming were injured. You are under oath. If you deny a prior injury that the defense has already documented, you have created a credibility problem that can undermine the entire case. Once a jury decides the plaintiff lied under oath about one thing, they question everything else the plaintiff says.
If you disclosed the prior injury to your attorney before the deposition, your attorney can prepare you to address it truthfully and in context. You were not the wrongdoer. All you need to do is tell the truth. It is your lawyer’s job to spend the time and effort to present the case effectively. Acknowledging a prior back injury from 2010 and explaining that you had been symptom-free for eight years before the accident is powerful testimony that supports the aggravation theory. Denying the prior injury and being confronted with records proving it destroys the case.
Tell your attorney about the bad facts
Every case has bad facts. You were on your phone at the time of the accident. You had a drink before driving. You waited three weeks before seeing a doctor. You stopped going to physical therapy because you could not afford the copays. You have a prior DUI. You have a criminal record. You have been divorced and your former spouse may say negative things about you in a deposition. You had an affair and your spouse does not know. You owe back taxes. You have filed for bankruptcy.
Do not misrepresent your income — the defense will obtain your tax returns during discovery and any inconsistency becomes a credibility issue. Do not misrepresent your activity level — if the carrier conducts surveillance and catches you doing something you claimed you could not do, the case is severely damaged. Do not change your address, telephone, or employment without telling your lawyer, because the attorney needs to reach you with information and court documents. Do not skip over any letter from your lawyer, and do call if there is something in it you do not understand. These facts exist whether you tell your attorney or not. If you tell your attorney, the attorney can prepare for them and put them in context. If you do not, the attorney is unprepared when they surface, and the damage is worse.
Be honest with your doctors too
Do not ever exaggerate your symptoms to your doctors. If you tell the doctor your pain is a 10 when it is a 6, and the doctor documents a 10, and then surveillance footage shows you walking comfortably through a grocery store, the inconsistency destroys your credibility. There is a big difference between someone who is genuinely hurt and someone who exaggerates. Juries can tell the difference. The insurance companies always try to say that injured people are not as hurt as they claim. Do not give them the evidence to support that argument.
Report your symptoms accurately. Acknowledge good days along with bad days. If a particular movement hurts, say so. If it does not hurt, say that too. If a treatment helps, acknowledge the improvement. If a prior treatment did not help, say so. The medical record should reflect your actual condition — not a performance designed to support a legal claim. An honest medical record documents a real injury in a credible way. An exaggerated medical record eventually contradicts itself and undermines the case.
The IME physician will evaluate effort during the examination. Medical professionals are trained to detect suboptimal effort on physical tests through various techniques. If the IME report concludes you were not giving full effort during range-of-motion testing or strength testing, that conclusion becomes evidence that your claimed limitations are exaggerated. Give full effort on every test. Report your symptoms honestly. Let the medical evidence reflect the truth of your condition.
What you tell your attorney stays with your attorney
The attorney-client privilege protects what you tell your attorney. With limited exceptions, your attorney cannot disclose what you say during representation. This means you can — and should — be completely candid. If you had a prior conviction, tell your attorney. If you had a substance abuse problem, tell your attorney. If you made a mistake at the scene that you regret, tell your attorney. The attorney needs the full picture to prepare the case effectively. The attorney will not judge you for the bad facts, and the attorney will not disclose them except where required or authorized.
The privilege does not protect information you provide to the insurance carrier, to the police, or to third parties. Once you have disclosed something outside the attorney-client relationship, the privilege does not cover it. This is one more reason not to make statements to the other driver’s carrier without your attorney’s involvement. And it is a reason to be cautious about discussing the case with family members or posting about it online. The privilege protects what you say to your lawyer. It does not protect what you say to the world.
How Schwartzapfel Holbrook creates an environment for honest communication
At Schwartzapfel Holbrook, we tell every client at the first meeting: tell us everything. The good facts, the bad facts, and the facts you are not sure about. Do not miss any meeting scheduled with your lawyer. Do not skip over any letter and do call if there is something you do not understand. We do not judge our clients. We advocate for them. But we can only advocate effectively if we know what we are dealing with. Honesty between attorney and client is not optional. It is the foundation of effective representation. A client who is honest with us especially about facts that seem damaging gives us the opportunity to prepare the case with those facts in mind. A client who withholds information gives us the opportunity to be blindsided at the worst possible moment.
Schwartzapfel Holbrook / Fighting For You