Written by: Patrick Brown, Principal Partner
10 Minute Read
Credibility or the lack thereof has always been at the forefront of my personal injury practice, but today it’s more important than ever—and AI is changing the playing field. This matters not just for trial lawyers, but for injured people who need to understand how their own honesty can make or break their case.
How the defence uses credibility against you
Over my career in Ontario personal injury, the defence has constantly tried to inject “credibility issues” into a case because they know it can be a powerful way to reduce the value of a claim.
A large percentage of my cases are tried by a jury. The defence would love nothing more than to portray my client as someone who just can’t be trusted—someone who is exaggerating their injuries, hiding parts of their history, and ultimately looking for a cash‑out they don’t deserve. Once they plant the idea that the plaintiff’s story is unreliable, it doesn’t stop there – if you can’t trust the plaintiff’s history, then you can’t fully trust the experts who rely on that history either.
When the defendant succeeds at this, it behaves like a virus. It starts with one inconsistency or omission and quickly spreads to the entire case: liability, damages, future care, income loss—everything is viewed through the lens of, “can we really believe this person?”
Objective vs. subjective injuries: when credibility is everything
When I meet a potential client, I do “size them up” as best I can. That’s human nature, but it’s also part of being a trial lawyer. At the same time, the type of injury heavily influences how much weight I put on credibility and likeability.
In catastrophic cases, objectively proven cases such as traumatic brain injuries with clear imaging, spinal cord injuries, wrongful death – the existence of a serious impairment is not really up for debate. You can argue about details, but you can’t argue away a wheelchair. Whether the person is likeable, unlikeable, or has a complicated past doesn’t change the reality that their life has been fundamentally altered. Credibility issues may still affect the amount of the award, but they don’t threaten to erase the case.
In subjective cases it’s a different world. Mild traumatic brain injuries, chronic pain, and psychological injuries often come with normal imaging and “clean” test results. In those files, the case rests more on credibility. I’m looking closely at:
- Their background and work history.
- Any signs of embellishment or exaggeration.
- Significant pre‑accident medical issues.
- Previous litigation or claims.
All of these are potential red flags, not because they automatically disqualify someone, but because they are exactly what the defence will use to try to infect the case with credibility concerns.
With brain‑injured clients, I have to be careful not to confuse genuine cognitive impairment with dishonesty. A person’s memory, insight, and behaviour can be altered by the very injury we’re litigating. That means my initial “read” on the client is helpful, but it’s not the final word.
How I stop clients from undermining themselves
Most plaintiffs do not wake up one day and decide to become fraudsters. They are vulnerable because they are scared about how they are going to keep the lights on. They get into trouble because they don’t understand how aggressively the defence will chase credibility issues. That’s why I try to help educate them right out of the gate.
I explain that defence lawyers and insurers want to inject credibility problems into the case. They will go through every line of every clinical note, every employment record, every prior claim, looking for something they can use to say “you can’t trust this person.”
So, I make the number one rule crystal clear:
Honesty, honesty, honesty.
That rule applies across the board:
With me.
With their family doctor and treatment team.
With defence doctors.
With defence lawyers at discovery.
I also give very practical techniques to enhance and protect their credibility:
Watch your language: avoid absolutes.
Everyday phrases like “I never had back pain” or “I always do overtime” are dangerous in litigation. Somewhere in a stack of records, someone will find that one visit for back pain ten years ago or the week you didn’t work overtime. Suddenly, a harmless figure of speech is spun as a lie.
Get the records early.
I don’t sit back and wait for pre‑accident clinical notes or employment files to show up months into the case or when the defence requests such. We get them early, we review them, and I send them to the client so we’re on the same page. If there’s a problem in their history, I’d rather discover it with my client in my office than have the defence drop it on us during cross examination.
Ignore “Joe neighbour.”
Well‑meaning neighbours, friends, and relatives often give terrible legal advice. “Don’t tell them about your old injury,” “Just downplay that prior accident,” “Best to stay at home, they’re watching you.” This is exactly how cases get poisoned. I tell clients bluntly, your neighbour is not your trial lawyer; listen to me and my team.
Understand social media reality.
Social media is a highlight reel. People post the best moments, vacations, nights out, smiling photos at family events. They don’t post sadness, pain, isolation, and day-to-day difficulties doing basic tasks. Defence firms will have someone crawling through those accounts looking for anything that can be taken out of context. A single photo of a plaintiff holding a drink or standing on a dock becomes Exhibit A in their story that “life is normal.” I explain how they’ll access it, why they do it, and why clients need to be extremely careful about what they post.
What makes a believable plaintiff in subjective cases
In chronic pain, psychological injury, and mild traumatic brain injury cases, there is often a fine line between a plaintiff whose story is believed and one whose evidence is quietly rejected. In my experience, the difference usually comes down to a few habits:
They admit the truth, even when it hurts.
They admit pre‑existing conditions, old injuries, and past mistakes without dancing around them. When something doesn’t look good on paper, we address it directly rather than pretending it doesn’t exist.
They avoid absolutes and talk about good days and bad days.
Pain and psychological symptoms fluctuate. A credible person will say, “some days I can do more, some days I can barely function.” That sounds real because it matches human experience.
They acknowledge improvement.
I encourage clients to acknowledge at least one thing that truly improved, “my range of motion is better,” “the headaches are less frequent,” “the counselling helped with panic, but I still struggle with sleep.” Courts are far more likely to believe someone who recognizes some progress than someone who insists everything is 100% awful all the time.
They don’t guess.
When they don’t know, they say, “I’m not sure.” Guessing to fill silence or please a lawyer is how contradictions are born.
A good case will guide itself.
It does not need embellishment, deception, moans, groans, or props. My job is to help the truth come out clearly and consistently, not dress it up.
Surveillance, defence medicals, and protecting credibility
Surveillance, social media evidence, and defence medical exams are standard weapons for insurers now. They haven’t gone away; they’ve become more sophisticated.
If I’ve done my job and my client has followed the principles above, I don’t lose sleep over surveillance. I explain early—verbally and in writing—that surveillance will likely happen, why they do it, and what they’re hoping to catch. A client who understands this is less anxious and less likely to behave unusually just because they “might” be watched. If your day‑to‑day life is consistent with what you say under oath, surveillance often ends up being a non‑event.
Defence medicals are a different kind of challenge.
I will tell my clients:
- Be upfront and honest.
- Do your best on the tests.
- Do not try to outsmart the doctor.
More and more, defence experts are embedding validity tests into everything they do. As a lawyer I make it my business to understand those tests, how they work, and how to challenge them when they are misused or overinterpreted.
I also strongly support a rule change that requires the recording of defence medicals. There is no good reason in the digital age for these assessments to take place in a “he said / she said” vacuum. Recording is inexpensive and it stops many disputes before they start. If a doctor’s report doesn’t match what actually happened in the room, we have a record to fall back on.
AI: the new credibility arms race
The biggest shift I see coming down the road, and already arriving, is the role of AI in credibility. AI is becoming an active player in litigation, and it is changing the game.
AI can now:
- Review thousands and thousands of pages of medical records, employment files, and prior claims in seconds and pull out anything the prompt asks.
- AI can chart out a detailed history of every complaint, every mention of a symptom, across years.
- AI will build exhibits that show prior symptoms and inconsistencies with brutal clarity.
- AI will cross reference transcripts to all reports and clinical notes looking for inconsistencies.
- AI will generate devastating cross‑examinations focused entirely on credibility.
In the past, a truly crushing credibility cross‑examination was the mark of a 20- or 30-year veteran trial lawyer who had spent time reading and listening to critiques and lessons on the crafting of a good cross. They could spend weeks mining records and crafting questions. Now, that sort of weapon sits on the desk of the “new, not‑so‑green” lawyer who knows how to use AI. They can generate a very good cross in minutes. Perhaps not the best cross (that still needs that human flare), but a very good one.
That must be scary.
If, in the past, the defence tried to inject credibility issues with a syringe, they now have a bazooka. They can find patterns, omissions, and contradictions that would have been practically invisible a decade ago.
But here’s the key: that same technology is available to me, and we use it.
I can run AI over my own client’s records, see the weak spots, and deal with them before we ever set foot in a courtroom. I can run all the same prompts that defence run. I can see how a defence lawyer will likely attack credibility and prepare my client accordingly. AI doesn’t replace experience and judgment, but it supercharges preparation.
And that brings me back to the central rule. In an AI‑driven world, where every record can be cross‑checked and every inconsistency can be highlighted in seconds, the best way to remove that weapon from the other side is simple and old‑fashioned approach that has existed during my entire career:
Honesty, honesty, honesty.
If you are truthful with your lawyer, truthful with your doctors, and truthful in discovery, and at trial, AI may still raise questions—but it won’t find lies. And if there are no lies to find, the bazooka becomes a lot less dangerous.
