We all communicate in different ways. People that characteristically aren’t “heard” by authority figures feel compelled to exaggerate. They are really experiencing pain that’s 4 out of 10 on the pain scale, but they tell doctors their pain is 6 out of 10. They don’t do this out of a want for personal gain. They do it because they feel authority figures have ignored what they have to say.
These people fall into a variety of groups. It may be that they are very young or very old. It may be that they are minorities or have been marginalized because of their weight. In any event, they feel like what they say requires a little bit more for people to pay attention to them.
This manner of expression can be the downfall of a personal injury case. This is particularly true during Independent Medical Examinations. Examiners will go out of their way to identify “pain behavior” or other forms of exaggeration.
This provides the foundation for defense counsel’s argument that the whole claim is made up – that the whole claim is a figment or product of the plaintiff’s imagination.
Opposing counsel will argue that, if the plaintiff showed signs of “pain behavior” exaggeration or embellishment at a medical examination, then it may well be that the plaintiff wasn’t injured in the way he says. They could argue that the plaintiff wasn’t injured at all and is making up the entire claim.
Once there is a scratch, ding or a dent in plaintiff’s credibility, the case falls downhill quickly. All the judge, arbitrator or jury needs is an inkling of doubt as to whether plaintiffs are telling the truth and the case is over.
We live in a society that stretches the truth. In many contexts we’re quite accepting of liars. Personal injury litigation is at the opposite end of the spec. There is no room for lying and in fact there is no room for exaggeration. As I wrote at the beginning, certain groups feel like they need to exaggerate in order to be heard. That exaggeration will almost inevitably prove to be the undoing of their personal injury claims. It’s paramount that plaintiffs – if they color the truth at all – err on the stoic side and downplay rather than exaggerate their injuries.