Beating the Malingering Defense

Probably the most popular defense to personal injury cases nowadays is the “malingering” or “secondary gain” defense.  Simply put, these are tactics by defense lawyers and insurance companies through which they accuse the injured person of faking or exaggerating their symptoms.  In the case of the accusation of “secondary gain,” the defendant says that the injured person does not want to get better because he or she has a motive of “secondary gain,” that is, getting money damages through a lawsuit.  Sometimes, the defendant or its attorneys won’t actually come out and say that they believe you are faking or exaggerating, but they will try and prejudice doctors, judges, and juries against you by implying it through every means possible.

Personally, I find these accusations despicable.  I have never represented someone that I thought was faking or exaggerating his or her injuries.  If I thought that someone was out to take advantage of the system, I would not represent them.

The real question, though, is how do we address these accusations.  Do we ignore them because we know they are ridiculous, and both you and I know how badly you are hurt?  Do we just lightly jab back at them, hoping they will fold like a paper tiger?  Or do we address them head on, calling them out and proving them wrong?

No matter how outrageous you think someone’s allegations of faking or exaggerating are, let me tell you I think it is a mistake to ignore them.  Powerful corporations and insurance companies have poisoned juries and even judges into believing that people injured through no fault of their own are faking, or, in their words “malingering.”  Therefore, we must address these topics head on.

One of the best ways I know to fight back is to identify family members, co-workers, supervisors, friends, etc. who can tell your attorney, and eventually the judge and jury, about how an injury has changed your life.  Co-workers and supervisors can testify about your efforts to come back to work, and the things that you can and cannnot do after the injury.  Friends and family members who observe you on a day-to-day basis can testify about the type of care you need,and the pain you are in.

Help your attorney by letting him or her know who these people are that might support your case.  Then, he or she can do the rest by using that ammunition to cross-examine the defendant’s experts, and literally blow that malingering defense out of the water.