One thing that drives me absolutely crazy is when attorneys conduct discovery like a robot. They issue the same written discovery to every plaintiff, review medical records by regurgitating information rather than analyzing it and question nothing about the plaintiff. If you are a defense attorney, stop doing this! If you supervise counsel, expect more and do not let anyone handle your cases this way.

Here is a perfect example of how thinking outside the box saved a retailer from paying on a potentially high value claim. The plaintiff was a young man who allegedly sustained a severe finger injury in a slip and fall incident. The injury was alleged to be permanent in nature. In addition, the plaintiff claimed he was the keyboardist for a famous Egyptian belly dancer and the injury prevented him from working.

During discovery, the plaintiff produced a copy of a CD he recorded as evidence of his career. The CD label had the plaintiff’s name and picture on it. I personally do not know anything about Egyptian music but rather than act like a robot and put the CD in a file, I questioned it. After a quick search on the internet I found a local expert on Egyptian music and contacted him to see if he would help.

The expert was thrilled to help. I showed him the CD and he promised to get me a copy of the CD from the actual store where it was being sold in Egypt. A few days later we had the CD and surprise, surprise, the plaintiff’s name and picture were not on it. The CD produced by the plaintiff was a forgery.

For about $100 plus an international overnight courier fee, we proved the plaintiff was a fraud. The plaintiff’s attorney immediately withdrew from the case, the case was dismissed and the plaintiff was never able to find another attorney.

Another great way to think outside the box is when evaluating medical records. Preparing a summary of each set of records is useless and a waste of time and money. Instead, create a medical timeline in sequential date order.   A medical timeline helps evaluate the claim, assess treatment and it is invaluable when preparing to depose the plaintiff, treaters and medical experts.

Here are a few tips to ensure you create the most useful timeline possible:

• Do not change words because that can change the overall meaning of the records. Instead, document the important sections. It is OK if this creates a long summary. It is easier to find things in a timeline than it is in the records. You only want to review the records once so make it count.
• Whenever there are important quotes from the plaintiff, put them in quotes in the summary.
• Know all of the medical injuries being claimed by the plaintiff before you start the timeline.
• Don’t include completely irrelevant records or information.
• Somehow highlight each section that is particularly relevant so it’s easier to utilize the timeline later. (i.e. use bold, italics or even different color font). This includes highlighting sections about:
  • The incident;
  • The specific injuries alleged in the case;
  • Pre-incident complaints or conditions in the same areas of the body;
  • Medical conditions or injuries not directly related but that impact the plaintiff’s overall health and physical abilities;
• Be sure to document the treater/author for each note. This allows the timeline to be used for preparing for the depositions of the plaintiff and any treaters.
• Within the summary include parenthetical notes to explain medical terms, diagnoses and procedures so the timeline is reader friendly.
• As the timeline is being created, note any inconsistencies which could indicate missing records.

Once the timeline is complete, you can truly analyze the plaintiff’s medical care and evaluate the claim. Don’t forget the importance of pre-incident records because plaintiffs will hide pre-existing conditions. Also, to ensure you are getting all of the post-incident records you can subpoena pharmacy records to look for undisclosed treaters and/or subpoena the plaintiff’s health insurance records.

Discovery is what makes or breaks a case. If you do it like a robot, your client loses every time. Instead, attack it like a private investigator and you will be amazed at what you find.

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