After being a personal injury lawyer for decades, I’ve seen some truly atrocious behavior in the courtroom. Often, this behavior results from the refusal of insurance companies and their lawyers to acknowledge how their actions contributed to the event that led to the tragedy.
For example, I once brought a wrongful death case where a five-year-old girl was killed while crossing her street to go play at her neighbor’s house. The defense lawyers in that case claimed her death was her mother’s fault. They said her mom was negligent for not escorting her across the street.
In reality, though, the fault lay with the company, which had a policy that caused their drivers to speed between appointments in two-ton trucks with large GPS devices in the windshield that obscured their view. Blaming her mother, instead of taking accountability, was both absurd and cruel, and I don’t believe even the lawyers making this frivolous defense believed it.
Maybe they were hoping to use it as an excuse to lower the amount the jury awarded in damages. Maybe they thought it was their only chance to get out of paying, so they might as well give it a shot.
Whatever their reasoning, this exaggerated disconnect from good sense and morality was not unique to this case. It’s the kind of bad behavior that defense lawyers frequently engage in, and as disgusting as it is, it’s actually a secret gift to my clients.
Seeing Through the Inauthenticity
It may sound controversial to say, but after trying so many personal injury and wrongful death cases, I truly believe that many defense lawyers have sold their soul to the devil. Otherwise, how would they be able to put forward arguments they know don’t hold water and still be able to sleep at night?
But here’s the thing: like I said earlier, this is the kind of behavior I watch for. Why? Because it can result in a better outcome for the people I represent.
Take the case I described at the beginning, where the defense lawyers tried to blame the young girl’s mother for her death. When the jury heard the defense lawyers’ arguments, their response was to say, “Wait a minute. Not only did this company kill this little girl, but now they’re trying to blame somebody else?”
The jury was able to see through the defense lawyers’ bad behavior. They picked up on their lack of authenticity and realized the company was trying to turn a blind eye to what was going on. As a result, they awarded more in damages to the young girl’s family than they might otherwise have. Even more importantly, they forced the company to change their policies so no other family would have to suffer what that child’s family did.
Deflecting the Gaslighting
The kind of defense I saw at that trial is what is known as “gaslighting.” Gaslighting refers to when the defense lawyer presents a false narrative to the jury hoping it leads them to doubt their initial perceptions and become misled.
Gaslighting most often is an untrue or unfair attack, or a smear campaign. And, after years in this field, I know that, in most cases, defense lawyers are going to try to gaslight the people I represent—the victims of the company’s bad policies or systems. But, I also know that I can take steps to deflect it.
How? By explaining it to the jury first. To give you an example, let’s say that a person is injured at a construction site. This person was working several feet behind an excavator machine with his back to the excavator. Excavators have large blind spots when they go in reverse. As the excavator backed up, the worker was in the operator’s blind spot. The excavator ran over the worker causing them to badly injure their leg and resulted in a below knee amputation.
If you’ve ever been on a construction site, you know how busy they are. I think of them as organized chaos. Because construction sites have so many dangers, special rules apply. One such rule is an excavator can never be moved on a construction site without a spotter to warn anyone in its path. In this particular scenario, though, the company didn’t have the required spotter on the scene. They were cutting costs and cutting corners.
Instead of taking accountability, the defense lawyers call in an expert who looks at the victim’s blood work from the emergency room. They claim the blood work that was taken after the pain medication was given to the worker at the scene could be interpreted that the worker was using cocaine before being run over. They don’t say how much cocaine, and they don’t say how long it was there. They just say that there must have been cocaine in his system, and try to blame the person for what happened because of it.
Addressing the Attacks
Things like this happen all the time. The defense lawyers know it’s gaslighting, but they try to get away with it anyway. However, I know that their claim that the accident was the worker’s fault is absurd. If I’m representing that person, I prepare them for the fact that the defense will try to bring up the cocaine.
But, I also prepare the jury. I make sure to point out that, if the company had followed the law and had a spotter there, as the law requires, it wouldn’t have mattered if the victim was high, drunk, or incapacitated in any other way. The purpose of the spotter is to prevent exactly what happened and the company chose not to have a spotter at the construction site. The simple truth is, if the spotter was there, the spotter would see anyone in the path of the excavator and prevent it from moving until the path was clear.
I get fired up about when the defense lawyer suggests a frivolous defense. As often as this kind of behavior happens, it never ceases to amaze me that, in cases like these, defense lawyers will argue that the innocent person is at fault.
Claiming that there was cocaine in the worker’s system, or that they were drunk, or otherwise maligning their reputation when they did nothing wrong, is an evil tactic defense lawyers use to try and shift blame onto the shoulders of an innocent person. It’s wrong.
Don’t Fall Victim to Bad Behavior
If you are going through a catastrophic injury or wrongful death lawsuit, it’s important to recognize that the defense will likely do anything they possibly can to gaslight you. However, you don’t have to fall victim to their bad behavior.
I tell my clients that the only problem we will have in deflecting the defense’s behavior is if they are not upfront and honest with me. Look, I get it: oftentimes, people are embarrassed to tell me if they were drunk or high when an accident occurred. However, keep it in perspective. Often, the condition someone is in has nothing to do with what happened to them.
Imagine that someone gets drunk and then gets behind the wheel of a car. Of course they shouldn’t be driving drunk, but at this particular moment, they are properly stopped at a red light. Suddenly, a tractor trailer rear-ends them, causing catastrophic injuries.
The lawyer for the company that owns the tractor trailer might base their defense on the fact that the driver properly stopped at a red light was drunk. The tractor trailer that rear-ended them was at fault, not them. The bottom line is alcohol consumption had nothing to do with being hit in the rear.
A good personal injury lawyer will anticipate the gaslighting that is going to take place. Even more importantly, they will guide the jury in seeing past it. So, be open about any bad choices you might have made. That way, you can help make sure that the defense lawyers’ bad behavior ends up becoming a secret gift.
For more advice on how to move forward after catastrophic injury or wrongful death, you can find I Hope We Never Meet on Amazon.
Andrew Finkelstein, a managing partner of five law firms (Finkelstein & Partners, LLP; Jacoby & Meyers, LLP; Fine, Olin & Anderman, LLP; Finkelstein, Blankinship, Frei-Pearson & Garber, LLP; and Diller Law, LLP), a noted consumer activist, and accomplished litigator, represents victims in wrongful death and catastrophic personal injury cases. He teaches advanced trial practices at the Trial School and is a frequent lecturer, serving pro bono for a variety of organizations, including the 9/11 Victim Compensation Fund.
Sarah Lunham is an interviewer, writer, and editor who advocates for the equal opportunities and rights of the injured at Total Trial Solutions. A biographer, Sarah tells the unique story of each client, helping them share their experiences and seek reparations for the injuries they’ve endured. She was awarded the 2009 Outstanding Graduate at Western Carolina University, where she earned her BS in Communication and minor in English.
Mr. Finkelstein is the Managing Partner of Finkelstein & Partners, LLP. He has become a noted consumer activist through his representation of injured individuals against corporate wrongdoers and irresponsible parties.
An accomplished litigator, Mr. Finkelstein has represented Plaintiffs in wrongful death and catastrophic personal injury cases. He has successfully handled dozens of multi-million dollar cases.