It is not uncommon for someone that is in an accident to have a pre-accident history of prior health problems.  Those problems can cover the full gamut of health problems, from cardiac issues, back or neck problems, vision problems, etc.  What happens if you had back problems or neck problems before your accident?  Can you still recover for neck and back problems that you feel after the accident?

     Pre-accident neck and back problems can fall into a number of different categories.  Some are the types of problems that you have, but you don’t know that you have.  In that category, many people have bulging or herniated discs and don’t realize it and don’t feel any symptoms from it.  Another type of pre-accident back problem is when you had pain that sent you to the doctor and you received treatment for it, including possibly surgery, but then you are pain or symptom free in the months or years leading up to your accident.  The third category is when you have a prior neck or back problem that continues to give you pain and discomfort right up to the day you get into your accident.  Are you allowed to recover in these situations?  If so, what?

     In Illinois, the fact that you had prior neck or back problems DOES NOT keep you from a recovery after a later accident.  If you have an “undisclosed” condition that did not give you any symptoms, or if your prior back symptoms had stopped before the accident, the fact that the current accident aggravated those conditions into current pain allows you to recover the full amount of your care and treatment for those conditions as if you had never had them before.  This is called an “aggravation” of a previous condition.  The at fault driver is as responsible for the whole amount of your damages as if they had caused all of your problems in the first place. 

     In law school, this topic is referred to as “the eggshell plaintiff.”  In a nutshell, the egg shell plaintiff theory is premised upon the common sense and logical fact that when the negligent driver hits you, that person takes you as you exist on that date.  There is no defense that because you are only egg shell thin in protection, that they are not responsible.  In other words, the defendant does not get to claim that if you were in better pre-accident health, that you would not have been injured in this particular accident.  The reason for that is clear.  Why should the defendant, the person that caused the accident, get any benefit so to speak from what your pre-accident health history is?  This is no different than if you were transporting priceless china in the trunk of your car when you get smashed from behind and it is all ruined.  The defendant owes the full amount of the value of that china and cannot claim that you should have only had  paper china in your car.  So, if the defendant aggravates a pre-existing, condition, they are on the hook!  For the WHOLE DAMAGES!!

     But, what happens if your back problems are nagging you right up to the point you get in the accident.  What happens then?  These types of cases are a little trickier to resolve.  The general rule of “aggravation” still applies, but you need to discern the difference in pain you are feeling after the accident compared to your pre-accident pain.  The defendant is responsible for that difference. 

     Whenever you have pre-existing health problems, particularly back and neck issues and get in an accident, these “aggravation” cases are compensable.  It does not mean that the insurance company for the at fault driver will just roll over and pay big bucks right away.  These types of cases are usually hard fought.   The defense will be aggressive, particularly if you have surgery after the accident.  The defense will often hire “expert” doctors to say that the accident did not cause anything other than a short term “exacerbation” of your prior condition and that your pre-accident back history was going to lead to surgery in any event.  In all the category of these cases, the defense will try and create the impression in the jury’s mind that all  of your accident complaints were things you had before or were destined to feel notwithstanding the accident.  Don’t despair.  You deserve a recovery.  This is when you need a real advocate on your side too!  This is NOT the time to hire the neighborhood lawyer that helped with your real-estate closing and your cousin’s divorce.  They may be very good at that, but go to a lawyer that ONLY handles injury cases for victims. 

     Remember, the insurance companies have vast amounts of money to hire good lawyers to fight you.  You need a fighter on your side too.  Good luck.

     After an accident, it is not unusual for the insurance company for the at fault driver to want to take a recorded statement from you.  Also, in uninsured motorist claims, your own insurance company will want to take a statement under oath from you.  And if you file a lawsuit, at some point, most likely, the lawyer for the “enemy” will want to take your deposition.  What is it?  What  do you need to know?  What should you wear?  Is the Judge there?  How long will it take?

     The most important thing to remember ANYTIME  the insurance company wants to take a statement, or the other lawyer wants to take your deposition, is that whatever you say is going to essentially “bind” you to that version of events for the rest of your case/claim.  In other words, the statement or deposition will lock in your testimony and you can  later say something different at your peril.

     The difference between a “statement” and a “deposition” is several.  A statement can be taken at anytime after an accident, but is usually done before a lawsuit is filed.  Once a lawsuit is filed, the other insurance company can only talk to you indirectly by having their lawyer call your lawyer, who in turns calls you.  So, in that case, the lawyer for the insurance company sends a notice to your lawyer indicating that they want to take your deposition on a certain date and location and time.  Your lawyer will tell you whether you need to appear on that date and should make arrangements with you to meet with you ahead of time to prepare you for the process.  If your lawyer does NOT make arrangements to prepare you for your deposition prior to allowing you to testify, in my opinion, you should really rethink who is representing you.  I don’t know any injury lawyer helping victims that is competent that doesn’t make sure that his/her client is thoroughly prepared to testify prior to attending the deposition.  But, what actually is a deposition and how does it work?

       A deposition is a formal legal proceeding where the insurance company’s lawyer, as well as the lawyers for anybody else that was sued in your case, will get to ask you questions that you will be answering under oath.  Your own lawyer will be there as well.  The Judge, in our practice, is rarely involved in a deposition.  There will be a court reporter present and the person or people you SUED have a right to be present as well.  It is a formal proceeding to the extent that you are put under oath.  It is informal to the extent that most depositions take place in lawyer’s conference rooms in a generally congenial environment.

     The word “deposition” comes from the form of the word “depose”, which essentially means to interrogate. In other words, the deposition is a form of “interrogation.”  The other lawyer will put questions to you that you are required to answer unless your lawyer tells you to not answer it.  Generally, the lawyer can only ask one question at a time, to which you respond.  The questions can come in any order, but the general categories that are usually covered are questions about your background, questions about the accident itself, questions about your injury and your recovery, questions about your time off work, and questions about the effect the injury has had on your life, activities, etc.  Again, the examiner can start anywhere and jump back and forth if they want.  Most younger lawyers start with background, then move to the accident, then to the injuries, etc.  Often times, more experienced lawyers may try to catch you off guard by starting the questioning with your injury, or how the accident happened.  This is why YOUR LAWYER needs to have prepared you ahead of time.   Also, since the court reporter is typing everything down, he/she can only listen to one person at a time.  So before you try to answer any question, let the examiner completely finish it before you start.  This will also give you a chance to reflect on the question and gives your lawyer time to object if need be.  Remember, this is NOT a conversation with the other lawyer!  It is an interrogation, albeit usually a polite one.

      The background questions in a typical injury claim are questions about who you are, where you live and work, your marital status, educational background, work experience, etc.  These are the EASY questions for you.  You know your own life experiences and it should be no problem to answer these types of questions.  The cardinal rule in our depositions, however, is to ONLY answer the question being asked.  If you can answer the question “yes” or “no”, in our experience that is often the best response UNLESS you need to explain something.  So for instance, if the lawyer asks where you live?  A truthful answer to that general question could be to just say “a house” or “an apartment” or whatever town you live in.  That is strictly limiting your answer to the question.  In reality, on background questions, the deposition will generally move a little quicker if on those types of questions, you give for instance your home address to that question. 

     The next type of questions you will get in our little hypothetical are questions about how the accident happened.  Here, you definitely want to make sure your answer is strictly limited to what the question was looking for.  In an auto accident type of case, you will get  many questions about relative speed of the vehicles, the distances between objects, the amount of time it took for things to occur.  These are EXTREMELY IMPORTANT questions about establishing who is at fault and is not the time for flippant responses.  This is probably the area in preparation that your lawyer did or will spend the most time so you have clear ideas in your head about how to testify to those facts.

     Questions about your injury and damages are usually pretty straightforward.  Sometimes it is hard to remember which doctor you saw on what specific day or what your exact complaints were on each of those days.  Generally, depositions are not memory tests about your medical care.  But you must be cautious of questions asking you in minute detail about each of your medical visits.  Defense lawyers often get you to commit to certain statements you think you may have made to your doctor but don’t appear in your medical records.  Later they will take the position that you may be lying or fabricating your injury complaints.  Again, your lawyer should have you prepared for this type of examination.  After all, your own lawyer has ALL of your medical records too and knows full well what the records say about each of your visits.  If your lawyer doesn’t cover this with you in your preparation, ask why not.  On the other hand, if your injury is catastrophic, such as paralysis or amputation, there isn’t usually too much confusion about what was happening at your doctor appointments.

     The last area of examination is generally about how your injuries have affected your life and your damages in terms of medical bills, lost wages, etc.  You may have to provide employer statements or tax returns to support your loss wage claim.   If you are married, the questions here may focus on how the injury has affected your marital life.  Is there a different division of responsibility around the house?  Are you sleeping in separate beds because of pain and discomfort?  Has there been a change in your sexual enjoyment with your partner because of pain?  That area of examination focuses on your loss of consortium.  Be candid.  During the damage portion of your testimony, this is  not the time to hold back.  Particularly in serious injury cases, don’t feel embarrassed to describe the devastating impact it has had on your home life.   On the other hand, if you strained your back and was all better in 6 weeks, it is hard to imagine a significant impact on your home life much beyond that time frame, so don’t try to “overplay” your cards.  We tell our clients to BE HONEST, OPEN and DON”T EXAGGERATE!!

     For some people, the most anxious part of the deposition is trying to figure out what to wear!  The answer is simple.  One of the most important parts of the deposition is for the insurance company’s lawyer to develop what sort of an impression you would make on a jury.  So, if you show up disheveled and unkempt, what impression do you think that makes?  On the other hand, if your job generally has you in blue jeans and a work shirt, you can certainly dress that way, but make sure your pants and shirt are clean.  If you work in that sort of a job, don’t try to create some other impression by wearing a suit and tie.  In other words, dress the way you want people to see you at your casual best.  Be neat.  This seems silly to talk about, but if you make a nice impression on  your own behalf, that is information that is relayed to the other insurance company!!  That is helpful to your case!

     You may also wonder why the judge isn’t present.  In our practice, judges rarely get involved in depositions because if any objections are made to the testimony, etc., the deposition continues on until it is finished and the lawyers raise any issues about the deposition or the testimony at a later time with the judge.  Lawyers are all “officers of the court” and as such are bound to follow ethical and procedural rules of conduct for depositions. 

     How should I act during the deposition?  This goes back to how you should dress.  We always tell our clients to BE POLITE!!  You do not gain anything in trying to make a good impression by getting angry with the other lawyer or arguing with the other lawyer.  Although there are always exceptions to these rules, generally this is the way to proceed.  Remember, if you explode in anger during the deposition, the insurance company lawyer will report that to his insurance client and they will factor your inability to control your emotion with how you will stand up to cross examination in front of the jury. If you lose control during the deposition, can they make you look out of control in front of the jury and hurt your case?? 

     In some types of cases, particularly cases involving severe injury to loved ones or death, the deposition of relatives, spouses, etc. can be very emotional.  Most defense lawyers are aware of how sensitive those situations can be and conduct themselves with a high degree of respect and sensitivity.  In those types of cases, don’t worry if you become emotional and perhaps cry or weep.  Grief can come back at almost anytime, particularly when you have to recount the experience that caused the loss or devastating injury. In those types of cases, no defense lawyer would think it “bad” if the widow cried describing how she found out her husband had been killed.  Or the mother sobbing trying to explain how she is trying to take care of her paralyzed little girl or boy.  Emotion from grief, loss, despair, longing, etc., displayed openly and honestly proves to the defense lawyer the devastating loss you and your family are feeling.  That information is relayed back to the insurance company as well. 

      In terms of how long a deposition can last, that varies depending where you live.  Most states have a time limit that can be about 3 hours to maybe 8 hours, but your lawyer will know how long it can last.  In our area, deposition in state court can’t last more than 3 hours absent some agreement or judicial intervention.  In most auto accidents, it doesn’t take a skilled examiner anywhere near the 3 hours to finish, but be prepared for that in any event.

     Remember, your deposition is a VERY IMPOTANT part of your case.  Be prepared for it, both intellectually with your lawyer, and personally in your own mind in what you know is going to happen, what to wear, how to act, etc. We often tell our clients that we do NOT win our cases in depositions, but we sure can damage our case if our client’s testimony is bad.  Consequently,  if you are anxious about it, make sure you tell your lawyer that and ask them to block out more time to get you ready.   If you are not comfortable the day of the deposition for some reason, make sure you tell you lawyer before you get there.   We communicate regularly with our clients in advance of their depositions and gauge from them their level of anxiousness and judge our preparation time accordingly.  Good luck!!

     It is always disturbing to an ethical lawyer to think that a client may be “faking” their pain complaints.  No lawyer worth their salt would take on or continue to represent a client that was “faking” their injuries.  Handling lawsuits can be expensive, and is certainly time consuming, and any competent injury lawyer would reject out of hand helping a client that is faking. 

     But what is equally disturbing is when a client gets injured in an accident, and the defense or the insurance company take the position that the injured person is “faking” all or some part of their injury, or is “malingering” (intentionally not getting better) or is motivated by a concept called “secondary gain” (continuing to be “hurt” because you have a lawsuit or claim pending, but will get “better” once it settles or concludes).   This type of tactic happens far more than the average person would imagine, and is quite disturbing to a client when they are told that is the position the defense is taking. 

     While it is certainly possible that some people fake pain complaints for whatever reason, let’s start with the basic premise that an ethical and competent injury lawyer has no time or motivation to help that sort of an individual.  That being the case, how does the defense lawyer or insurance company get away with doing that?  The simple answer is that if the defense cannot contest the fact that they are at fault, the only thing left for them to do is to contest the nature and extent of the injury.  And they do it through a variety of mechanisms including jaded arguments to the jury, reliance on paid experts to give that opinion, etc.   Defense lawyers routinely tell jurors that if the plaintiff was truly injured, that they would not miss doctor appointments, or wouldn’t have gone back to work, or resume other activities.  They also argue that real injured people go to medical doctors, not to a chiropractor or  any  type of faith based healer or alternative medicine.  I believe these are  cruel arguments  rooted in cynicism and malice.  Should an injured person be penalized because they waited two or three days before they went to the emergency room or doctor when all they were really hoping is that the pain would go away, and when it didn’t realized they should go see a doctor?  Should you be penalized because you went to work in pain so that you could earn the money to take care of your family?  Should an insurance company that fails to accept responsibility early on and begin advancing payments be allowed at a later date to argue that you should have stayed off work??  Isn’t it the height of audacity for a defense lawyer or insurance company to suggest or argue what type of medical care you should receive?  What business is it of theirs to interfere with your RIGHT to go to whatever health professional you trust and have faith in? 

     Defense lawyers also hire expert witnesses to review your medical records or to examine you, only to draw conclusions about your injury that are different from what your own doctor concludes.   The experts they hire to examine you often administer some type of “Fake Bad Scale” questions that supposedly BASED UPON YOUR ANSWERS ALONE, allow them to  conclude whether you are “faking” your injury or not. 

     Pain has many definitions, but in its most simple form is a sensation or feeling of distress or discomfort.  Pain is usually the result of some type of stimulation to a nerve ending.  Think of the pain you feel if you hit your finger with a hammer, or when the dentist “hits a nerve.”  That is pain from nerve stimulation.  But pain can also result from other things in the body as well.  Some pain is “musculo-skeletal pain.”  That pain comes from overuse or overexertion of certain muscles.  That can be pain that you feel the day after raking all the leaves, or lifting weights.  That can also be called delayed onset pain.  Similarly, if you twist too sharply, or overextend your legs or posture, you can “pull a muscle” which clearly causes pain. Pain can also originate from some type of brain activity that is sensing pain that lacks a corresponding “injury” so to speak.  That type of pain or discomfort is what accounts for claims of “phantom limb” pain some people feel after losing an arm or leg for example.  It is thought that the brain continuously remembers the trauma that caused the amputation and replays that pain memory over and over.  That is similar to what people believe is the source of discomfort for those with tinnitus or “ringing” in the ear, which is really the brain sensing sound where there is none.  Another type of “pain” is the loss we feel when a loved one is killed or passes away.  That type of pain is emotionally based in grief and feelings of loss and despair.

     The point about “pain” is that it cannot actually be seen, only felt or experienced.  Pain is also unique to the person that suffers from it.  In other words, a “pain” that may not bother one person can be a source of immeasurable discomfort to someone else who has  a different pain tolerance. 

     The purpose of this discussion is to reassure those that are experiencing “pain” that it is real even though it can’t be seen on an x-ray.  The fact is that the human body has nerves all over the place.  Thus, an injury to a certain part of the body, such as your back, can certainly stimulate nerves in that area causing pain.  If you are experiencing pain, seek out competent medical help if you feel it is necessary.  If you can tolerate the pain, that is a different thing.

     In lawsuits and claims, pain is a hotly debated topic.  Your injury lawyer uses every imaginable method to prove to the jury the pain  you are feeling is real, it is there.  On the other hand, the defense lawyer argues that if you had pain in the accident, it should be gone by now, etc.  So, if you do get in an accident, the way you talk about your pain becomes very important.  From the first moment you go to the emergency room, they are writing down what is bothering you.  If you only complain of neck pain in the E.R., and then two weeks later when you see your doctor you tell him your lower back hurts, but your neck is fine, that will be fertile ground for the defense lawyer to attack your claim.  So, be consistent about what pain you are feeling.  In other words, if you felt neck pain the first day, and that is what is bothering you at your second doctors visit, make sure you call it neck pain again.  If you later develop lower back complaints, remember to tell your doctor that although your neck  was what you were most concerned about earlier, now your back is bothering you too.  If you are being treated by a caring medical provider, and a lawyer that has the tools to show the jury your pain, you are in good hands.  If during your case your lawyer tells you that the defense has hired an “expert”, don’t fret.  Be honest and trust your lawyer to do the job he or she was hired to do. Remeber, if the defense is challenging your pain complaint, it is only because if they don’t, the jury is only left with what your lawyer tells them about your pain in addition to your own testimony of how you felt or feel.   If your lawyer can’t do the job you hired them to do, fire them and hire one that will.  A good injury lawyer knows his client is in pain and has the arguments and skills to get that point across to the jury. 

     Remember, pain is real.  Just ask someone with a headache!  Good luck!