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Overcoming Common Defenses In Traumatic Brain Injury Cases (Part VI)

Preparing for the Defense Medical Examination

For a truthful client who is doing the best he can to put his life back together, defense medical and neuropsychological examinations pose no special difficulties. I always make sure clients are aware their first and primary job is to tell the truth, and to put forth their best effort. It's always a good idea to remind clients that defendants and their experts have a variety of tools available to tell whether they are exaggerating or feigning anything, so don't even try it. (I generally don't tell them what these tools are.)

I also remind clients that denying the presence of a complaint or a problem, when that complaint or problem is in fact present, is another way of not telling the whole truth. For some clients, this is a short and simple conversation. For other clients - such as, for example, clients whose resilience is built at some level on robust denial of their problems - this can require a much longer and more careful conversation. I don't want to be the bearer of bad news, but I also cannot allow my clients to tell less than the whole truth about their condition and capabilities.

Some clients prefer to have a handwritten record of their medications, their medical history, or their problems with them. I always encourage these if the client prefers to approach it that way. No jury is going fault a brain-injured client for needing truthful reminders of a litany of details.

By the same token, I also tell clients that they are not required to be the definitive chroniclers of their entire medical history. That's what medical records are for. I cannot think of anything less convincing, to a defense medical examiner or to a jury, than a witness who rattles off a treatment timeline that is an obvious product of rote memorization.

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