I never take on a new client without sharing the quote above with them. The most valuable component of any personal injury case is the client’s credibility… period, end of case. If you exaggerate or stretch your claim beyond the bounds of your evidence, then your client will lose credibility, devalue your client’s claim and lose their case.
The number one tactic most defense attorneys use to undermine a personal injury case, is to encourage the injured client to overstate or exaggerate their claim while under oath in a deposition or to omit their history of a past injury to the same portion of the body or to hide a prior collision or claim. The client thinks, “Why tell them, they may never find out.” However, they almost always do. The defense argues, “Why did your client do these things (they said they couldn’t do)? Simple… because they don’t have a legitimate claim.”
Honesty is not just the best moral policy, it is also the best economic policy when it comes to the value of a personal injury case.
So don’t forget the quote and don’t let your client forget it either.
There is no tactic which will better serve you and your client in establishing credibility with the jury then to bring out negative points during direct examination and confronting them head on with believable explanations. If you wait until redirect, then it may be too late to salvage your witness. I always make a list of problems as the case progresses from investigation through discovery and on the trial. Come up with a strategy of either excluding the evidence or find a way to deal with it honestly and persuasively before the jury.
During direct examination, you can ask questions of your client or witness the jury is likely thinking. The witness is then provided an opportunity to take some of the sting out of the evidence by having a friendly questioner take them through the problem. The opposing attorney on cross-examination will be much more reluctant to extensively cover that area and come across as overbearing, looking as if he is desperate as he has nothing else to ask or add to outside of your examination.
The client or witness should be cautioned to stay calm throughout their cross-examination on any such topics. Once the matter has already been brought out to in direct examination, the jury will be looking much more at the witness’s reaction on cross. If they do not react and you do not react, the jury will likely conclude that the matter is not critical to their decision. Most jurors have never been in a courtroom before and will not consider the points important unless you act like they are.