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Counsel That You Can Trust & Depend On

Rule #1 in Your Leesburg Personal Injury Case

Guy Dimartino Dec. 13, 2015

If you want to be successful in your Florida personal injury claim, follow Rule #1 – DON’T LIE!

The American Heritage dictionary defines lie as “a false statement”, “to convey a false image or impression.” Some synonyms are disinformation, distortion, inaccuracy, misrepresentation, tale.

If you are bringing a personal injury claim there is only room for the truth – no embellishment and DON’T LIE!

The Story

Here is the story of a guy, whose BS cost him over $300,000 and his lawyers over $100,000 because of BS. The plaintiff received a pretty bad injury to his heel (calcaneus fracture) in a car accident that was clearly the other driver’s fault.

During the course of the case, plaintiff gave three depositions in which he gave false and misleading information about the nature, extent and severity of pain, and his ability to work.

The First Deposition

Plaintiff gave his first deposition. Remember, a deposition is a question and answer statement under oath. One of the purposes is to lock in the witness’ story under oath so if it is different than information in documents or testimony at trial, the witness can be impeached. After the deposition, the defendant’s lawyer hired an investigator to follow the plaintiff around and see if what he said about his limitations was accurate.

The Video Surveillance

I know video surveillance seems creepy, having someone following you around to check your truthfulness, but it happens all the time. In this case, the videographer caught the plaintiff on tape:

  • Pulling the trash out to the curb, while holding, but not using his cane

  • Driving his stick shift jeep – (manual transmission requires a clutch)

  • Walking in front of a tool shed to a hot water heater without using his cane

  • Driving his jeep to a water sports boat store, he was using his cane in the store

The Second Deposition

So the defendant’s lawyer had the plaintiff’s first deposition and video surveillance. In the second deposition, plaintiff testified that he:

  • He had to use a cane to walk outdoors

  • He was constantly in pain even in bed

  • He could not fish

  • He could not step up and down curbs

  • He would lose balance frequently when walking due to pain

  • He could not perform any kind of work

The Third Deposition

In the third deposition, plaintiff testified similar to his first two depositions but after taking a break, attempted to clean up his testimony. Testifying that he could go fishing about 1 time every 2 weeks in the summer and 1 time a month in winter. He admitted to owning 2 boats, and that he could probably use a manual transmission but he sold the jeep.

After the Third Deposition

This requires a little explanation. A witness has the ability to review his/her deposition testimony once it’s transcribed and make changes. The changes are placed on a document called an errata sheet. When plaintiff received the transcript he provided an errata sheet revising his testimony, to the following:

  • He would only use the cane when he was in a lot of pain or knew he would walk a lot, different than prior testimony

  • He could walk 3 feet without the use of cane – previously he testified that he would need the cane if he walked more than 3 feet

  • He was able to resume fishing;

  • He also made multiple other changes.

The Trial

In trial, plaintiff was impeached up and down based on his prior testimony. He admitted that he lied about:

  • His pain level

  • That had to use cane when outside

  • That he could only get away without the cane inside because he held onto furniture

  • He could not walk more than 3 feet without falling

  • He could not step up and down curbs

At this point, the defendant asked the judge to dismiss the case based on a doctrine called “fraud on the court” because of the multiple lies. The trial judge denied the motion.

The jury came back with a verdict for the plaintiff, even though he lied, awarding $186,000 for pain and suffering, and $136,000 for lost wages. He also received money for his medical expenses. Imagine what the plaintiff would have received if he didn’t have to admit to lying multiple times.


The defendant appealed the verdict to the Fifth District Court of Appeal. The appellate court took away the pain and suffering and wage loss verdict. Specifically, the court said:

The record clearly establishes Ortega engaged in repeated, serious misconduct over a period of years, we conclude the integrity of the judicial system required dismissal of Ortega’s claims for lost wages and pain and suffering. By his own conduct, Ortega forfeited the right to have his case heard on these claims.


I’ve preached about this issue on a number of occasions. In this day and age, with the advance in electronics, databases, electronic health records, an injured person has to be above board about all things. Because of the rhetoric in society, juries come into the court with suspicions when a person is making an injury claim, and if this is coupled with a suggestion that the plaintiff is over-reaching or embellishing their injuries, he/she will get kicked out court.

In this case it’s a shame because the guy had a real injury that is known to cause longstanding problems.