Longterm Disability Lawsuits and the need for Lay Witnesses

In my last blog on disability insurance companies, I took them to task for their delaying tactics. Now, I want to talk about what to do once your lawsuit is underway and the insurance company has hired an expert who says you are not disabled.

Insurance companies have deep pockets. They have a list of doctors they regularly go to for expert reports - where they know in advance the expert's report will support the insurance company's position that you are not disabled and are employable. Hopefully, you also have a number of expert reports from doctors that support your disability.

With the insurance company's experts in one corner of the ring and your experts in another corner of the ring, we have what might be described as a "Battle of the Experts". In such a case, it may be very difficult for the court to decide whether or not you are in fact disabled and unable to work.

In my practice, I have found it very effective to break this logjam by preparing and relying upon a number of lay witnesses. For example, many years ago, I had a client who was suffering from Chronic Fatigue Syndrome. As is so often the case with this condition, my client had good days and bad days. A good day was like a "gift from heaven" - he would be as active as possible. This helped break the monotony of his many bad days - where he would typically be in bed all day. On one of his good days, he was out for a drive in his vehicle. His vehicle was an older rundown vehicle because the insurance company had terminated his disability benefits quite some time ago and, as such, my client was of very limited financial means. On his way up a hill his vehicle stalled. My client got out of the car and pushed it up the hill! Little did my client know that he was under video surveillance by the insurance company!! Now, many people might have thought that this would be the end of his lawsuit. How could my client claim to be so disabled by his chronic fatigue syndrome that he was unable to work, if in fact, he was physically capable of pushing his car up a hill? I have to admit that even I had some concerns about the strength of his case. As is so often the case, a lay witness - not an expert, proved to be key.

I set about developing a list of potential lay witnesses. I asked my client to give me the names and contact particulars for any friends, neighbors, relatives and others that he thought might be of benefit to his case. I carefully interviewed all of these witnesses, witness by witness, until I came upon the landlord. He was a very credible individual - a retired RCMP officer. I was so impressed with what he had to say about my client - he confirmed from eyewitness evidence that my client did spend days on end bedridden and that on many occasions he, the landlord, had to provide assistance such as meal preparation and running of errands. Clearly, my client was not capable of employment. I thoroughly prepared this witness and then contacted the insurance company's lawyer to arrange for mediation. I suspect that the insurance company only agreed so quickly thinking that we were ready to 'throw in the towel', given the video surveillance.

I brought the lay witness, the landlord, to the mediation and kept him in the waiting room. After each side had done their best to convince the other of the strength of their case, I let everyone know that if we did not settle that day, I had a retired RCMP officer, my client's landlord, as a lay witness who I would be bringing to trial. I then did something rather unusual -- I invited the insurance company's lawyer to interview the landlord 'then and there' in my presence. They took me up on my offer. They were so impressed by the evidence of this witness that the file did settle that day for a third of a million dollars!

The point is: while you should never ignore or underestimate the need for experts, it's also very important to invest the time necessary to develop your lay witnesses. This will almost certainly give you an unbeatable advantage over the insurance company! You have much better access to lay witnesses.