Pre-Existing Conditions

So many things about personal injury cases are counter-intuitive.

I’ve had the most success during jury selection when I’ve moved to disqualify jurors who are clearly sympathetic to our client. Why? Two reasons: (1) they’d be disqualified by the court anyway, and (2) by doing it myself it surprises the other potential jurors and galvanizes the message that I just want a jury who is going to listen to the evidence and be fair to both sides.

The same kind of counter-intuitive thinking applies to pre-existing conditions.

Pre-existing conditions can directly overlap with more recent injuries. (Back pain before the collision, worse back pain after it.)

Or they can be “adjacent.” (Depression before concussion; persistent post-concussive symptoms after the concussion.)

Almost all clients downplay or are cagey about pre-existing conditions. How come? Because they’re scared that the insurance company is going to use the pre-existing condition to avoid paying what they’re owed.

But minimizing, downplaying, or being cagey about pre-existing conditions makes clients look bad.

The reality is that pre-existing conditions are part of the narrative. And no one can argue with the fact that people with pre-existing conditions are easier to hurt and harder to fix.

One of my favorite clients likes saying: “Land the plane.” So, in case all of that’s too layered, let me be as direct as possible: Clients should brag about their pre-existing conditions.

Why? Because people with pre-existing conditions are entitled to more money, not less. That’s right. More, not less.

It’s kind of mind blowing the first time you hear it. But once you think about it (or experience it) you’ll understand what I mean.

Losing an eye is a big deal if you have two eyes. It’s even a bigger deal if you only have one.

Pre-existing conditions deplete your reserves and limit your ability to compensate for new injuries. As the famous trial layer Moe Levine explained:

That’s what happens every time a client with an imperfect back, neck, or brain gets hurt by someone else’s negligence.

I don’t have a catchy slogan like, "Say it Loud! Gay and Proud!"

But that kind of enthusiasm should resonate from clients who had problems before someone made a left-hand turn in front of them or decided to take a smoke break rather than cleaning up a spill on the floor.

I had problems before! And they’re even worse now!