Client can make or break a lawsuit: Lee
By Tony Poland, AdvocateDaily.com Associate Editor
A credible, likable client is one of the pillars of a successful lawsuit, says Toronto personal injury lawyer Andrew M. Lee.
“I’ve been doing this for enough years to have seen cases fail because the client was not likable or credible,” says Lee, principal of Lee & Associates.
“If I make a determination that a client is not likable and would not fare well before a jury then I’ve got the very difficult task of telling them that. It’s my obligation, and I’m more likely to settle those cases.”
He says proving a claim involving soft-tissue or musculoskeletal injury can be difficult.
“You’re dealing with a situation where the believability of the client is paramount because the injuries are so-called invisible in nature,” Lee tells AdvocateDaily.com. “It really comes down to the client, so that person’s got to be believable.
“We’re living in an age where experts are considered an absolute necessity” when it comes to personal injury claims, he says.
“When you go to a trial you’ve got a number of different witnesses including the plaintiff,” Lee says. “But it seems paramount importance is being placed on the experts, the so-called hired guns.”
Experts can carry plenty of weight with a jury and are “often considered the main actors on the trial stage,” he says.
However, Lee says, “You can get caught up in hiring experts, and you can get caught up on what the experts might say. But at the end of the day, I’ve seen able defence counsel do a very good job of sweeping aside the show that you create."
“A realistic assessment of the case requires an honest look at the factual foundations and your client’s credibility," he says.
Using soft-tissue injuries incurred in a traffic accident as an example, Lee notes a jury would look at the extent of the damage to the vehicle.
“If you’ve got a car that has hardly any damage to it you’ve got to keep in mind that the photographs of the vehicle are going to be shown to the jury by defence counsel,” he says.
“Juries are creatures of reason, and they’re going to come to some pretty strong conclusions rightly or wrongly as to whether your client is hurt just by looking at photographs of the damaged car.”
Lee says the jury is “not likely going to buy into your client’s complaint if the photographs show very little damage.”
He says another factor the jury will consider is what the plaintiff did following the accident.
“Did they go to the hospital, was an ambulance required, did he seek immediate medical attention?” Lee asks. “If you’re looking at a situation where they didn’t go to hospital, they didn’t require an ambulance, and they went to see their family doctor a week after the accident, these things speak volumes about the credibility of the claim.”
Lee says even with the best experts in your corner, your client has to do their part.
“Often it’s years after the accident that you get to a hearing or trial, and if the client is attending treatment, it speaks volumes about their credibility,” Lee says. “Every plaintiff is going to be complaining about the pain, about the symptoms, about the impairments, but there’s got to be an action that supports the words.”
To be successful in a motor vehicle claim in Ontario, a person first has to meet “the permanent serious impairment threshold in the Insurance Act, so it’s not enough for them just to have some pain, it’s going to have to be a pain which is permanent and serious in order to qualify for an award of general damages,” he says.
Lee says the fact that a plaintiff has sought continuing therapy or tried alternate forms of treatment goes a long way to “support their credibility.”
It can all come down to the plaintiff, he says.
“If your client is not likable, is not credible, then nothing an expert says on the stand in support of your claim is going to be given a lot of weight by the jury,” Lee says. “As any expert will confess, their entire opinion is based on what the client would have told them during the medical assessment, so if the client is not believable, the very foundation of the expert testimony is called into question.”
He says the first hurdle for the client is during the examination for discovery, where defence counsel has the opportunity to turn up the heat.
“They’re pushing buttons, probing and asking questions in such a manner to test your client to see if they will get angry, to see if they will break down, because if your client gets angry at discovery, then they’re likely to get angry at trial when the gloves really do come off,” Lee says.
“You’ll often see the number one defence is an attack on likability and credibility, and if your client is not prepared at trial to withstand a vigorous cross-examination on inconsistencies, they could fall apart on the stand.”
He says when advising clients about how far to take the case, and whether to accept a settlement or proceed to trial, it’s important to take a long, hard look at that person.
“You’ve got to dance with the one who brought you. You can talk to your clients about likability and advise them against arguing with defence counsel, but at the end of the day, their personality is their personality,” Lee says.