And How Smart Plaintiff Attorneys Bring Them to Light
1. Pre-Incident Complaints or Internal Reports
Hospitals, nursing homes, and companies often have a trail of internal complaints or incident reports before your client’s injury ever occurred. They’ll bury them under “irrelevance” or argue “privilege.”
Counter: Always request prior similar incidents and complaints — and don’t stop at written records. Depose staff who handled prior events.
“A facility’s paper trail tells you more than its policy manual ever will.” — Kay Van Wey, Trial Lawyer
2. Missing Minutes: Incomplete Medical Records
Defense teams may turn over partial records, especially in EMR systems where audit trails and deleted fields are hidden.
Counter: Ask for the audit log. It shows who accessed what and when. It also reveals alterations post-incident — gold in cross-examination.
3. The Real Chain of Command
In hospitals or corporations, official org charts rarely reflect who actually made decisions. Middle management or consultants often dictate policy, but their names are absent from discovery.
Counter: During depositions, ask: “Who would have overridden this?”, “Who made the final call?”
4. Prior Lawsuits and Settlements
The defense may try to suppress previous claims involving the same provider or product, calling them prejudicial.
Counter: Argue pattern of conduct — particularly if the injury stems from a known risk that was previously litigated.
5. Insurance Coverage and Limits
They’ll fight hard to keep insurance details out — but this can affect mediation posture or realistic settlement talks.
Counter: While juries can’t see it, you can subpoena the carrier under the state’s disclosure rules.
6. Pre-existing Condition Overload
Defense attorneys will overemphasize old injuries to suggest your client’s suffering isn’t new.
Counter: Be ready with independent medical exams and well-crafted summaries that clearly isolate the before and after. Focus on functional loss, not just diagnostics.
7. Lowball Expert Credentials
They’ll sometimes use experts with minimal real-world experience — just enough to qualify but not enough to persuade.
Counter: Research thoroughly. Disqualify weak experts with Daubert/Frye motions or by exposing inconsistencies in past depositions.
8. Delayed Incident Reporting
They may hide that staff delayed reporting the injury, which could show gross negligence or even cover-up attempts.
Counter: Ask for incident report policies and compare timestamps with chart entries or internal communications.
9. Recorded Statements from Your Client
Insurers often record initial calls — and won’t disclose unless asked. These can hurt your client if they were in pain or unaware.
Counter: In discovery, demand any and all statements made by the plaintiff or representatives thereof.
10. Timeline Manipulation
Expect subtle shifting of when treatment began, who responded first, or what steps were taken when.
Counter: Create your own master chronology — cross-referencing EMS logs, nursing notes, and internal chat systems. Jurors trust a story that flows.
Final Thought
The defense’s best tool isn’t always argument — it’s obscurity.
As plaintiff attorneys, we win by forcing clarity. By illuminating what’s buried under privilege objections and procedural tactics. By assembling timelines that leave no room for reasonable doubt.
“Good lawyers prove negligence. Great lawyers reveal what the defense tried to keep hidden.”
— Jim M. Perdue Jr., Perdue & Kidd LLP