What's That Got to Do with Anything?

My clients often become annoyed (to say the least) when we reach the discovery phase of the litigation process and they are suddenly bombarded with questions concerning their criminal background, prior accident history, prior legal and insurance claims, and prior health history. At some point, usually very early on in the process, they roll their eyes and exasperatingly inquire, “What’s that got to do with anything?” Well, let me tell you.

Rest assured that most of your prior criminal mistakes, accidents, and claims have little to do with your current case and may not even make it into evidence at trial. In discovery, however, the legal standard in North Carolina is not that which is actually admissible, but rather that which may potentially lead to admissible evidence. Therefore, you must disclose most of the information requested even if a jury never gets to hear it. If you do not disclose it, then the likelihood of the jury hearing it increases exponentially because the defense will be conducting an investigation on you of their own, find it, and then confront you with it. At that point, they impeach your credibility for not fessing up and the jury will now probably not like you for failing to tell about it. In short, they’ll think you’re now a liar and that you tried to hide something (even if you innocently forgot).

The defense is interested in your prior criminal history because there may be something in your past that theoretically bears upon your “character for truthfulness.” In short, if you’ve been convicted of something like embezzlement in your past then the defense may be able to use that in the judge’s discretion to argue to the jury that you’re not necessarily the most truthful person and therefore they should not believe you. The defense is interested in your prior insurance and legal claims because they are interested in making you look litigious. Our current society tends to disfavor litigiousness. People are too quick to sue, says the prevailing public sentiment. Let’s ignore the fact that it’s your legal right to assert valid claims when necessary and that the tens of thousands of dollars you pay in insurance premiums over the course of your lifetime are suppose to go to paying for such claims. These are just a few of the reasons why you are asked these questions.

One of the essential elements of a negligence claim is the element of “causation.” You (we) must prove, by the greater weight of the evidence, that your neck, back, shoulder, knee or [insert other body part here] injury is related to the accident. This is where your prior accident and prior health history become relevant. For example, if you’re suffering from lower back pain after the collision and you’ve only been to the doctor once before in the past few years for the flu, then your case for causation is pretty strong because you have no similar symptoms in the past and it’s more likely that the accident caused your pain. If, however, you’ve had a multi-level spinal decompression and fusion surgery to your lumbar spine in the past few years, then your case for causation is probably not great. Regardless, it will ultimately be up to your doctor to educate and assist the jury in determining which of your symptoms are related and what treatment was necessary due to the accident.

Ultimately, if you’re concerned about how something from your past may affect your current case, speak with your attorney about it. Tell us up front and right off the bat. We’re here to help you in anyway we can and it’s best for us to be prepared if there is something potentially harmful in your past. As J.R. Solly said, “be frank and explicit with your lawyer…it is his business to confuse the issue afterwards.”