Factors that can provoke an aggressive attack by defense counsel

If you bring a case to recover damages for your emotional injuries, be prepared for the perils that you might face as the plaintiff in litigation. Your mental injury attorney can discuss with you the risk of invasion into a plaintiff’s life during the course of a lawsuit.

There is no science to predicting which case will be an emotional nightmare for plaintiff pursuing a mental and emotional injury claim, and which case will be relatively easy. However, there are certain factors that can provoke an aggressive attack on plaintiff’s mental and emotional damages claim by the defense. They are cases in which:

• The primary or only injury is psychological (that is, there is no bodily injury) and the alleged stressor is objectively minor.
• Defendant distrusts plaintiff’s credibility.
• The claim of the seriousness of the extent of the injury seems to defendant to be out of line with the severity of the claimed stressor (for example, post-traumatic stress disorder from minor car accident).
• Defendant is aware of aspects of plaintiff’s background that will turn-off the jury (for example, criminal convictions or domestic violence).
• Multiple stressors exist in plaintiff’s life before and after the subject trauma that can explain plaintiff’s mental and emotional injury.
• Plaintiff has a history of psychological dysfunction in school, work or family and social relationships.
• Plaintiff has filed multiple lawsuits and appears to be litigious.
• Plaintiff has a history of overreacting to minor stressors and “slights.”
• Plaintiff has a lifetime of psychological problems with or without a history of treatment.
• Defendant personally has a lot to lose in a case (example: sexual abuse case against a professional who may lose his or her license if charges are proved). However, sometimes these cases can be settled with the least amount of emotional strain on plaintiff, if defendant believes an early settlement will protect his or her license.
• A sexual abuse or harassment case in which defendant denies the sexual conduct.
• Plaintiff has a history of being fired from a number of jobs.
• Plaintiff was already in psychological treatment at the time of the subject trauma or plaintiff has a significant history of psychological treatment. (This factor is not as important in malpractice and sexual abuse cases against psychotherapists.)
• There is a long gap between the time of the subject incident and the time plaintiff seeks psychological treatment.
• Plaintiff is in the mental health field and psychologically sophisticated.
• Plaintiff has a large disability policy which covers psychological disability and plaintiff is collecting benefits under the policy.
• Plaintiff alleges that the subject trauma destroyed his or her marriage when there are indications of a troubled marriage before the subject incident.
• No indication is present that the psychological injury claim existed before plaintiff visited an attorney.
• The mental and emotional distress claim arises out of an incident in which many other people are exposed to the same trauma (such as a train or bus collision with hundreds of other passengers) and plaintiff is the only person, or one of a few, claiming a psychological injury.

If you have suffered a mental and emotional injury and are considering bringing a lawsuit, a knowledgeable psychological injury lawyer can evaluate the facts in your case. A plaintiff’s attorney experienced in handling claims for mental injury damages can analyze the prospects for your case and the likelihood of the defense waging an aggressive attack.