The skeleton in your closet

Photo: Contributed

Unless you grew-up in a bubble, chances are you have done a few things in your life that you aren’t jumping at the chance to post as your latest Facebook status. Sometimes these things are minor embarrassments (perhaps what happened in Vegas didn’t stay in Vegas) but in other cases they are more serious matters such as previous accidents, workplace conflicts, drug addiction, mental illness, adultery, criminal charges, childhood abuse, abortions, etc. You go out of your way to keep this information hidden, hence the term “skeleton in the closet.” So are you willingly going to disclose it to your own lawyer, let alone some strange insurance adjuster for your personal injury claim? Not likely. However, in most cases the insurance company doesn’t need your help to find the skeleton. They have plenty of tools and resources at their fingertips and there is nothing they enjoy more than finding the skeleton you think is hidden. So what business is it of theirs to delve into your skeletons? Well, it depends.

When you are injured in an accident where someone else is at fault, you can generally make a personal injury claim for financial compensation. The purpose of the compensation is to put you back in the same position you would have been in, but for the accident (to the extent money can do this). It is important to understand that the person or entity responsible for your injury is only obliged to put you back into the same position you were in immediately before you got hurt. No better, no worse. This is where the skeletons come in. To put it bluntly, if your life sucked before the accident, the defendant is not responsible for making it perfect. The defendant is only responsible to the extent they made it worse.

In determining how much worse off you are as a result of the accident, the Court is often asked to predict the future. While what has happened in your past does not define your future, it can impact how the Court will approach the value of your claim. The Court will often make this prediction with the help of experts, such as doctors, occupational therapists, vocational therapists and economists. Of course none of these people have a crystal ball. What they do have is statistics and a large predictor of the future (at least for legal purposes) is the past (yours and others like you). As a result, if you were an unemployed bum with a poor academic history at the time of the accident, the Court is not likely to find that, but for the injuries sustained in the accident, you were going to become a NASA scientist. I’m being a bit sarcastic and a bit simplistic, but I think you get the idea.

In addition to predicting the future, your past also impacts your credibility (level of trustworthiness/believability), which plays a key role in the outcome of your case. This is particularly true in cases involving minor impact (also known as low velocity impact or LVI claims), cases about chronic pain or psychological injury where there are little, if any, objective (visual or measurable) signs or symptoms of injury, and cases involving pre-existing injury. As a result, skeletons that speak to your credibility can play a devastating role in the outcome of your case if not handled properly.

It is important to remember that while perceived skeletons can have a negative effect on the outcome of your claim, they can also have a positive effect. Personal history that highlights how you conquered a past skeleton can be used to improve your credibility and show increased vulnerability. For example, if you have a history of drug addiction but you have been clean for a significant period of time that can be used to your benefit. Another common example is where you have a history of mental illness, you are generally considered to be more susceptible to psychological trauma than someone without a history of mental illness. This vulnerability, or skeleton as it may be viewed, can actually increase the value of your claim as opposed to hurt it.

Minor skeletons (one-off incidents), are not likely to play a major role in your claim; however more serious skeletons will play a significant role, particularly if permanent injuries and large damages are being claimed.

In conclusion, if you are pursuing a personal injury claim and think you may have some “skeletons in your closet”, be sure to disclose them to your lawyer so they can be properly dealt with at an early stage. Never assume the other side won’t find out. You may even find that they are valuable to your claim. If they are harmful, your lawyer is better off to know early so that strategies can be created early as opposed to being ambushed at trial.

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.