Page 33 - FDCC Insights Spring 2022

normal, consuming routines of daily life. Find out the plaintiff ’s pre-accident lived life, his or her pre-accident “typical day.”
For those of us with jobs (at least pre- pandemic), this involved getting up in the morning, dressing, getting the kids ready for school, breakfast and a commute. Then a workday, commute home, and inescapable chores followed by a period of mostly sedentary relaxation then sleep. These days leave little time for the vigorous athletic activities now claimed to be lost to injury.
Weekends may give more freedom for leisure, but questioning about what a weekend day looked like before the accident may, nevertheless, restrict a plaintiff’s ability to exaggerate limitations and restrictions on previous activities. And what is left can be confronted with the “what, where, when, with whom, any collaboration questions, etc.”
And do obtain a picture of the plaintiff’s current “typical day.” Does the plaintiff still get up, dress, breakfast, get the kids ready for school? Commute home, have dinner, help with homework, watch TV, read and go to sleep? Visit friends and family on weekends, have dinners out and go to movies? Frequently, post-accident does not appear very different from pre-accident.
Setting up the witness
Records often contain information
inconsistent with the plaintiff ’s claims, either
explicitly or by omission. For example, the
emergency room record may contain statements on how an accident occurred that are incompatible with the plaintiff’s theory of liability, or fail to note complaints about the part of the body that the plaintiff now claims was permanently injured in the accident. By all means, confront the plaintiff. However, before doing so, set it up to maximize the impact of an acknowledgement of the record as accurate or to make a denial extremely implausible.
Insights SPRING2021
31
Note that the power lies in the questions regardless of how the witness answers. A “yes” is a trap and a “no” is devastating.