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Did not disclose prior injuries to attorney. We are closing in on trial date. What should we do?

New York, NY |

Wife injured her shoulder in a car accident in 2012. She had prior injuries to the same shoulder almost 7-10 years ago but she did not disclose this information w her attorney and has been denying prior injuries since any pain since did not exist. She is afraid that if she discloses now, she wont have a case.

Attorney Answers 10

Posted

This is a problem. There is a good chance that defense counsel will be armed with this information as part of their trial prep. You don't want your attorney to hear about this for this first time during your wife's cross examination. He will lose all credibility before the jury and it will be difficult if not impossible to rehabilitate your case. Although you may have already jeopardized the case, do not compound the problem by not telling your attorney. Do it now.

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Posted

Why wouldn't you tell your attorney everything? I would assume that he asked you if there were any prior injuries to that shoulder. Was your wife asked at her deposition if she ever injured her shoulder? Did she say "no"? If they know about it and use it during cross-examination your wife will appear to be a liar; particularly since your attorney probably stated that your wife had no pre-existing injuries. You should speak with your attorney immediately.

Mr. Pascale is licensed to practice law in the State of New York. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and time-lines that, if known, could significantly change the reply and make it unsuitable. Mr. Pascale strongly advises the questioner to confer with an attorney in their state in order to insure proper advice is received.

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Posted

She must disclose it. The failure to disclose will hurt your case far more than the fact your wife had a prior injury. If it was asymptomatic for many years it does not mean anything or at worst that the new injury lit it up. Disclose immediately and deal with the fallout. Bad facts hurt your case, but deliberate falsehood undercut everything you say.

This response does not create a lawyer client relationship. Each case is determined on its specific facts and this reply is intended for a general audience and facts particular to your case may affect the answer. Consult with an attorney in person for specific answers to your questions.

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Posted

The plaintiff bar has a difficult time as it is dealing with "tort reform" jurors for reasons like this. You should always be candid with your attorney, no exceptions. Contact your attorney and tell him what is going on. As a trial attorney that tries these exact types of cases I can tell you a simple fact. You can always deal with prior injuries in a cariety of ways, pre existing injuries DO NOT bar you from recovery. But, being deceitful is not only going to get you no where it will likely cost your attorney money. We must invest thousands of dollars to get cases to trial. At the end of the day you are doing everyone a disservice and perpetuating the misconception that our court systems are used for pecuniary gain as opposed to attaining a semblance of justice. Assuming there have been depositions and written discovery your wife has sworn, under oath, that she did not have any pre existing injuries. This is the definition of perjury if she takes the stand and lies under oath. All of this is bad and your attorney has the right to know since they may be walking into a virtual trap if they missed a non party record that was requested by the defense.

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1 comment

Richard H. Wooster

Richard H. Wooster

Posted

Well said Christian!

Posted

She could be screwed. She committed perjury in her deposition. The defense likely knows about it and will cross examine her at trial and the jury will not like her. I suggest you come clean and settle if you can.

I am a former federal and State prosecutor and have been doing criminal defense work for over 16 years. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012 and 2013. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. Martindale-Hubbell has given me its highest rating - AV Preeminent - in the areas of Criminal Law, Personal Injury, and Litigation. According to Martindale-Hubbell”AV Preeminent is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence." Fewer than 8% of attorneys achieve an AV Preeminent rating. I also have the highest ranking – “superb” – on Avvo. The above answer, and any follow up comments or emails is for informational purposes only and not meant as legal advice.

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Posted

The sad thing is that aggravation of an injury entitles you to the same amount as if you hadn't been injured in most cases. There is this thing called the "eggshell plaintiff rule" where defendants have to "take a plaintiff as they find them." Like if you have a very weak skull and die in a 20mph car accident that wouldn't kill most people, the defendant is still liable for the death. Just like your wife's shoulder.

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Posted

Sounds like she committed perjury in her depositions, and is preparing to commit perjury again. Best bet is for her attorney to find her a good criminal attorney.

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Posted

Have her tell her lawyer.

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Posted

Your wife and possibly you as well, perjured yourselves most likely at the oral deposition. Your attorney is entitled and would be perfectly justified in dropping your case like a hot potato. What type of reasoning possessed you and her to lie to your own attorney? You prior injury could easily have been handled by "you take your victim as you find her" doctrine. Now, you and she will have zero credibility to the jury on everything from pain and suffering to limitations of function, etc. I hope other readers take an object lession here.

If you found this "helpful" or "best answer," please click it with my appreciation. My response is for educational purposes and does not constitute legal advice nor creates an attorney client relationship which requires all the details and a personal conference.

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Posted

The shoulder is a complicated joint with many different parts. Perhaps a review of the prior records will show that the injuries are quite different. Thus it's best to advise your attorney so he or she can compare the injuries and reconcile them so any damage to credibility will be limited.

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