Defense Tricks - How To Beat Them!

In today's video, renowned New York City personal injury trial attorney Arkady Frekhtman breaks down a recent case verdict from Georgia. With a deep dive into the defense attorney's strategies and tactics, Arkady explains how insurance companies and their legal teams try to devalue cases, specifically focusing on how they question the credibility of the plaintiff. 

He highlights key tactics used by the defense, including casting doubts on the plaintiff's injuries, insinuating fraud, and raising questions about medical treatments and their cost. Arkady also introduces the concept of the 'eggshell plaintiff rule,' emphasizing how everyone, to some extent, enters a case with pre-existing conditions. This informative discussion provides critical insights into the mechanics of personal injury lawsuits and the tactics that both sides may employ.

Frekhtman & Associates specializes in serious and catastrophic injury litigation and are recognized as some of the best personal injury lawyers in the New York City area.

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✅ CHAPTERS

00:00 Introduction
00:28 Case Background
00:52 Defense's Statement
01:22 Defense Tactics
01:47 Plaintiff Criticism
02:04 Insurance Involvement
02:23 Burden of Proof
02:47 Claim Value
03:09 Preexisting Conditions
03:36 Injury Severity
04:06 Case Progression
04:33 Defense Tactics Continued
04:52 Opening Objections
05:08 Life Enjoyment Point
05:29 Vacation as Evidence
05:47 Plaintiff's Profession
06:31 Doubt and Confusion
06:49 Eggshell Plaintiff Rule
07:35 Doctor's Opinion
07:58 Future Care
08:30 Doctor's Benefit
08:52 Responding to Defense
09:14 Jury's Decision
09:45 Burden of Proof Explained
10:04 Verdict
10:31 Case Summary
10:49 Upcoming Case
11:09 Fronting Strategy
11:36 Degeneration Meaning
11:53 Injury Cause
12:17 Conclusion
12:34 Channel Promotion

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Transcript

[00:00:00] Hi everybody, this is Arkadia Frekhtman, a New York City personal injury trial attorney, and today I wanna look at a recent case that just took a verdict last week to see how the insurance companies and defense lawyers try to devalue cases. So this was a trial that happened in Georgia and it was a car crash case, and the plaintiff suffered.

[00:00:28] Uh, herniated discs. Bulging discs. A typical common personal injury lawsuit where somebody suffers a back injury. And so I wanna look at actually the Defense Lawyer's opening statement and some of the points that the defense lawyer made, and then I'll tell you what happened in the case. Uh, uh, so let's, let's go to the defense's opening statement.

[00:00:52] So the first thing that the defense lawyer said was that anyone. Could file a lawsuit, right? Anyone? [00:01:00] Anyone could just walk into the courtroom and file a lawsuit. All you need is a little bit of money, like a few dollars for the filing fee, and you can file a lawsuit because the plaintiff was talking about a forever injury, a serious injury, a life-changing injury, and they were asking for tens of millions of dollars.

[00:01:22] And so the defendant, Said, okay, so this plaintiff, they're talking about the plaintiff. They're talking about his life, but what about my client? What about my client having to pay for all this? He only has one day in court too. And anybody could walk into the courthouse and file a lawsuit. And what he's really insinuating is that, you know, it's a fraud, right?

[00:01:47] It's a, the plaintiff is a liar, cheater, and a fraud. And that anybody could walk in there and just file a lawsuit against an innocent person, and then that innocent person might have to pay tens of millions of dollars, which we [00:02:00] all know if you've been watching my channel or if you're just, uh, an experienced, uh, person in this.

[00:02:04] Realm. You know, that's false. There is insurance that pays for all this, right? You can't mention insurance in a trial, but it's not this little old lady that's going to be paying the judgment. It's not this defendant, even though you might like the defendant, might be a nice guy or nice lady, they're not the ones that are paying the judgment.

[00:02:23] So this kind of argument is kind of. You know, very, very suspicious. So then he turns to the burden of proof, and he says the plaintiff has the burden of proof, and if they don't prove the case. Then they get nothing and they have to prove that this accident led to all of their injuries. And then he mentions it again.

[00:02:47] He says that they're asking for a lot of money, tens of millions of dollars. So they have to prove that every injury is as a result of this accident. And this was a [00:03:00] case where, you know, the plaintiff had some preexisting conditions like most people do, like nearly all people do, right? Everyone has.

[00:03:09] Preexisting conditions, we all come into a case. Or if we get into an unfortunate incident, like a slip and fall or a car crash, we all come in with our history and everybody has certain changes from living their life, maybe past, uh, trauma, you know, variety of things. So he's wrong there again, right? He's saying that you have to prove that this accident led to all of it, but you don't.

[00:03:36] You really have to prove. Is to the extent that this accident made it worse. So the fact that somebody has something before doesn't mean that they don't have a case. What it means is that they're actually more vulnerable, more fragile, more delicate, and they need that much more care. Somebody that is already a little bit injured from living their life or from a past [00:04:00] fall or whatever the case may be, needs that much more care.

[00:04:06] And if you end up. Crashing into that individual. Well, maybe that crash has, is now the straw that broke the camel's back. Right? Maybe that's what pushed him over the edge and now he's gonna need full blown spinal surgery, or he's gonna have a forever injury of some other sort. So that's another point that I think, you know, um, I have to watch the trial again to see if the plaintiff addressed that you, that's the thing with opening statements like the plaintiff goes.

[00:04:33] First, I thought the plaintiff did an excellent job, did a great opening statement. But the defendant goes second and the defendant, if they're a good experienced defense lawyer, which this guy was, what they do is they try to like, you know, make, uh, concoct a lot of falsehoods. And so you don't want to like stand up every, every second and be like, objection.

[00:04:52] Although you can, you can sometimes, if it's very egregious, you can't object. And it's good to object if something is really against the law [00:05:00] and against the procedure. But you don't wanna be objecting every. Every sentence. And at the same time, like once they're done with their opening, you don't have a chance to respond to that.

[00:05:08] You could respond through witnesses and you could respond in your closing arguments or your summation. That's, that's later on. So, you know, it's kind of, it's kind of a tough thing. Now, the other thing he talked about was that, you know, the plaintiff had planned a vacation. And he actually went to the vacation.

[00:05:29] He had planned the vacation before he got into this car crash, but after he got into the car crash, he, he went to the vacation. And the reason they say that is to show like, look, you could still enjoy your life. You planned the vacation. You went to the vacation. So it's not so life altering. And they do that a lot.

[00:05:47] A lot of the times in depositions, they will ask you if you are planning to go to vacation. Sometimes they'll ask you for a copy of your passport and they'll look through it to see if you went anywhere. Um, to, and, and especially if you testified that [00:06:00] you cannot go anywhere and you did not go anywhere, but then they find out that you did, then it's a credibility issue, right?

[00:06:05] Then you're a liar. So then they really try to harp on all that. And then, um, he mentioned in this case, actually it was interesting. The plaintiff was actually an attorney. He wasn't a personal injury attorney. I believe he was in another field like real estate or family law. But it was interesting because what they had said was that the plaintiff started treatment with a clinic or a chiropractor that he referred clients to, so that he mentioned that in opening, right?

[00:06:31] So, so look at all the things they're doing, right? They're trying to stir doubt, they're trying to stir confusion. And you know, I, from watching the trial, I thought that this plaintiff was injured. You know, I thought that he did have a serious injury. I mean, he did have some, uh, preexisting conditions, which, like we talked about, a lot of people do.

[00:06:49] But that shouldn't really hurt the case because that's the eggshell plaintiff rule, right? If you have something, um, then they have to be that much more careful. Like, for example, if a car [00:07:00] hits an individual who's super strong and like an Olympic athlete and a bodybuilder, you know, that person might not even fall down, might have no injury, might say, okay, you know, be more careful next time you, you, you tapped me.

[00:07:11] But if that same car hits an oxygen area, somebody who's 80, he falls over. Hits his head has like a brain bleed. He may be, you know, in a coma for months and months. That's a completely different kind of case, right? That could be a multimillion dollar case. So it just, you take your plaintiff as you find him, and there's no penalty for having prior medical conditions cause everybody's got something, right?

[00:07:35] Whether it's your back, whether it's your, you know, uh, your prior shoulder injury, whatever it is, everyone has something so, But that was one point that they made about the, the treatment. And then another point he made was that he was talking about a doctor. Okay? And this is one of the doctors, uh, that may had an opinion for the plaintiff.

[00:07:58] And the doctor said that [00:08:00] the plaintiff will need all this treatment, like, uh, radiofrequency ablations, epidural steroid injections, perhaps a percutaneous discectomy, basically pain management. And he will need possibly a, a spinal fusion in the future as well. So he was talking about all this future care and what the defense lawyer said was he said, well, this one doctor, he retired, so all that money is now gonna go into someone else's pocket, not his.

[00:08:30] So again, right, he's trying to create this. Falsehood that the doctor's not saying that the patient needs treatment because the patient truly needs treatment, but what he's saying is the patient, the doctor, is trying to, you know, conjure up the need for treatment in order to make money, in order to line your pocket.

[00:08:52] And it's a very, very nefarious, you know, evil kind of argument, but sometimes it works, right? It depends on the [00:09:00] juror. And one way to respond to that is to polarize the case. And what I mean by polarize the case is to just go out there and say it as the plaintiff's attorney say, look, it's gonna be up to you as the jury.

[00:09:14] You, you're gonna have to decide. And it's not a decision about one doctor, it's not a decision about vacations. It's not a decision about the burden of proof, whether everything came from this crash, but it's really a decision is this individual. A liar, a cheater, and a fraud, or is this an innocent injury victim who happened to get hit by a car and suffered a life altering injury?

[00:09:45] It's either one or the other, and you're gonna have to make that choice. And with the burden of proof, it's very important to remember that the plaintiff only has to show more likely true. Then not true. So the plaintiff does not have to show like a [00:10:00] reasonable doubt beyond a reasonable doubt, or even clear and convincing evidence.

[00:10:04] So the burden of proof is very easy. It's just more likely true than not true. So if you have, let's say, you know 51 and they have 49, will you tip the scales? You've met your burden. That's all you have to prove. And so, you know, that's something else that the plaintiff's attorney did say. And, uh, so what happened was they got a, a verdict, they got an over a million dollar verdict, but I think that they were hoping for much more.

[00:10:31] They were asking for tens of millions of dollars. And so I wanted to talk about how this opening statement and, uh, we could, we could look at some other parts of it later, like the closing arguments or some of the doctor's testimony. But I thought they did a good job. I thought every, every lawyer involved did a good job.

[00:10:49] It was an interesting case and actually watched it because I have a trial coming up in, uh, later this summer, and I believe that it's gonna be a lot of the same [00:11:00] arguments where the defendants are going to say that, you know, my client had a prior accident, which he did. You know, I'm just gonna, I'm, I'm gonna what, what you call fronted.

[00:11:09] I'm gonna admit that I have to. Right. Because he did have it and he also had some degenerative changes. Um, but you know, having degenerative changes, degeneration, really what it really means is it's the normal, painless aging process. We all go through it, right? When you're born and you're like a little baby, you start to degenerate, degenerate and just means living your life until you turn, I don't know, 80 and you pass away.

[00:11:36] Then you stop degenerating, cuz now your, your life is over. But that's, that's what it is, right? So for example, if somebody gets hit by a truck or they fall down steel steps like 12 or more steel steps,

[00:11:53] you know, the jury's gonna have to decide, are these medical conditions from living your life, the [00:12:00] normal, painless aging process? Or is it traumatic? Is it from falling? Is it from the crash? And that's something that. They're gonna have to decide based on all of the evidence, including the doctors, the medical evidence, and, and the defendant's evidence as well.

[00:12:17] So I hope this has been helpful. Um, this is a common defense that we see in a lot of cases, this issue that we didn't cause it, it was caused by something else. So let us know what you think. Um, and we are here for you. Okay? Please like and subscribe to our channel. Please leave your comments and questions.

[00:12:34] We are here for you and, um, we will talk to you very soon. Have a great day. Bye-bye.