Perhaps the most frequent question I am asked by people making in personal injury claims in Florida is, “What should I say” to my doctors or to the defense lawyer about my alleged injury? And my answer has and will always be–“Just tell the truth?” I have seen on an almost daily basis clients trying to “help” maximize the value of their cases with their perceptions of what could or would make their case more valuable.




Should I work? Yes, if you can. Injury claimants seem to think a jury or adjuster might magically believe their cases are much more valuable if they miss time from work. However, after more than 20 years of standing in front of juries across the State of Florida, I believe no jury will award or reward plaintiffs for lost wages simply because they did not work-rather than could not work. Unless a doctor says “Don’t work” or the injury is so obviously significant that nobody could reasonably expect one could work with the injury, I encourage my clients to get back to their jobs–or at least try.

Juries, I have found, like to help those who cannot help themselves, but rarely reward those who are sitting at home waiting for a verdict. This is why I tell most of my clients to get up and try to get back to your normal life–whatever that may have been before the accident.


Very rarely have I represented claimants who, for example before a truck accident in which they claim to have injured their backs, had never complained to a doctor of a back, neck, or headache. Yet, inevitably once they are involved in an accident, the story is almost universally, “I have never had a backache in my life.”

And this can be both true and false at the same time. It may be true, that the backache or complaint they had before was in a different anatomical location. Perhaps they did not feel the same strain from lifting a heavy box. They might feel a different piercing pain from a herniated disc following a rear-end collision. Possibly the original pain was temporary and went away, but after the accident the pain not only continued but got worse. I also understand, as I approach my 48th birthday, the possibility that one could simply forget about a prior back pain and treatment, especially after the nerve-wracking trauma of being involved in an accident.


Of course, the other possibility is that the claimant is trying to conceal the prior injury with the hopes that nobody will discover it, and with the false hope that it will help provide the basis for establishing a larger recovery in their accident–in other words, fraudulently concealing it to get more money from the case.

Whether the reason for not disclosing a prior injury is forgetfulness or fraud, the defense lawyers will do everything possible to convince both the judge and jury that it is the latter and seek to destroy the plaintiff’s credibility or, even worse, get their entire case dismissed.

For example let’s consider the case of Tia Gautreaux, who is not our client. She sued Rafael Estrada Maya for a car accident in Seminole County, Florida, claiming that the accident caused her to suffer from migraine headaches. She testified to that effect in her deposition, which is testimony used before a trial to understand the nature of what a witness will say at trial. In virtually every car accident case, the injured claimant will have to give sworn testimony under oath both in a deposition and in written questions and answers known as interrogatories. Lying in either a deposition or interrogatory can subject a person to charges of perjury.

During Ms. Gautreaux’s deposition, she was asked the following:

Q: Have you ever suffered from headaches before this accident?

A: No, ma’am.


That same month she sought treatment from a neurologist where she reported that one of her chief complaints was a headache and that prior to the date of the accident, she did not have that problem.

The neurologist was then subpoenaed for deposition, where he was asked the following;

Q: So the patient relays to someone in your office that she never had headaches before; is that accurate?

A: Of this type, correct.

Two and an a half years before the crash, Ms. Gautreaux had been seen at a local hospital’s emergency room where the medical records revealed that she had sought treatment for a pressure behind her eye with a chief complaint of “headache” and had told the nurse she had a history of migraine headaches that had started three days earlier, along with a history of chronic migraines.

In response to discovering this information, Mr. Maya’s lawyers served Ms. Gautreaux with a Motion to Dismiss her claim and sit her down for an additional deposition to obtain sworn testimony about the inconsistencies between her previous declarations and the newly discovered medical records. In her second deposition she explained that she had been confused by the question regarding headaches as it was asked in the plural as opposed to headache, which she “remembered now” as a sinus pain but not the same as what she had after the accident. Upon hearing her explanation and reviewing the medical records and the testimony of her neurologist, the trial court dismissed her case for the commission of fraud on the court.

Under Florida law, fraud on the court means that a party has purposely calculated and schemed to interfere with the judicial system’s ability to impartially adjudicate a matter by improperly influencing a judge or jury or unfairly hampering the opposing party’s claim or defense. Dismissing a case for fraud on the court is the “death knell” of a lawsuit and is “strong medicine” that should be used only when a party’s conduct is truly egregious.

Ms. Gautreaux appealed to Florida’s 5th District Court of Appeal. I rarely see the appellate courts in Florida give plaintiffs the benefit of the doubt in their opinions. In fact, I describe most of Florida’s appellate courts as the toughest jury my clients will face, regardless of the verdict we may obtain in trial. But I stand happily corrected in reading the 5th’s opinion in this case: it reversed the dismissal and ordered that the case proceed to trial, opining that the dismissal of a lawsuit for fraud on the court for a “mere testimonial discrepancy is not enough.”

The 5th felt that Ms. Gautreaux’s conduct did not meet the narrow and stringent standards to warrant the dismissal. I agree, and I am happily surprised to see that Ms. Gautreaux will now have her day in court. Of course, she will still have to convince a jury about her inconsistent testimony, and I doubt they will be as forgiving as the 5th. Read the opinion here.

This issue derailed an otherwise simple and straightforward car accident case–costing the claimant and her lawyers years of work and the expense of an appeal. Don’t let this happen to you in your case. As the old saw goes, the truth will set you free.

If you have been involved in a car or truck accident in Florida and have questions regarding your potential claim, our personal injury lawyers in Miami provide free initial consultations. Please Email me, Spencer Aronfeld, or call our office to protect your legal rights: 305-441-0440 or toll free: 866-597-4529.