AI arms the defence — but McLeish Orlando’s Patrick Brown says the antidote is simple
Credibility has always been the battleground in personal injury cases, but Patrick Brown says a new weapon is changing how that battle is fought. After 30 years in practice, the principal partner at McLeish Orlando LLP sees one force as a true game changer — and it shouldn’t come as a surprise that it’s artificial intelligence.
By now, it’s well understood that AI can be fed an entire file, churning through clinical and hospital records, employment information, and tax returns to create an entire history in minutes. But when it comes to that crucial aspect of the case — credibility — it’s more than just a powerful tool.
Especially in Ontario, where most personal injury cases are tried by juries, a plaintiff who is perceived as untrustworthy, inaccurate, or out to cash in on awards they don’t deserve will see the value of their claim driven down. AI is now being used to exploit that vulnerability. It can comb through the file, identify inconsistencies with the plaintiff’s testimony during discovery, and prepare a cross‑examination on those points.
“If the defense can inject doubt into a plaintiff's case, it's like a virus; it really spreads quickly,” says Brown. “In the past, they injected it with a syringe. Now they've got a bazooka in the form of AI.”
Despite credibility becoming more of a prevalent issue with the power of AI, Brown’s belief that the vast majority of plaintiffs are honest remains unchanged. Most are legitimate, with “real pain, real losses, and who need real help,” he notes. They just require early, clear guidance so they don’t accidentally undermine their own case.
Guarding against that starts from the first client meeting, and how toxic credibility may become depends on the type of injury. Where there is obvious, objective harm — a severe traumatic brain injury requiring 24/7 care or a spinal cord injury that confines someone to a wheelchair — it is difficult for the defence to question the impairment itself. Credibility and likeability loom larger in cases built on subjective reports: mild traumatic brain injury, chronic pain, or psychological injuries without positive imaging. In those files, the case rests largely on the plaintiff’s reporting of ongoing symptoms.
Counsel should look closely at the person’s background, work history, previous lawsuits, and whether they have a significant pre-accident health history. Are there any signs of embellishment or exaggeration? Those are red flags that could impact the case significantly.
“In those situations, you’re definitely sizing up the individual and you’ve got to set that client straight right out of the gate,” Brown says, adding that he’s clear about how defense counsel and insurers will scour all documents looking for “aha, caught you” moments to reduce fair and reasonable compensation.
The goal is to empower plaintiffs so they don’t give the defense that opening in the first place. Whether they’re speaking with treating doctors, rehab professionals, defence medical experts or defence lawyers at examination for discovery, clients should be upfront — and hyperaware of word choice.
Language matters. Plaintiffs should avoid absolutes like “never,” “always,” or “100%,” which are easy to disprove and can make even a truthful witness look unreliable. Instead of saying “I never had back pain,” they might say they don’t recall, or that they may have, but it didn’t affect them at the time.
To support that careful, honest testimony, the McLeish Orlando team obtains pre‑accident clinical notes and records and employment files early — even before the defence asks — so they can review the history with the client, refresh fading memories, and align their evidence with the documentary record.
“I tell all my clients, listen, I don't have many rules, but one that I do expect you to follow is honesty, honesty, honesty throughout this entire case,” Brown says. “If you do that, you’ll do well.”
One of the newer ways plaintiffs can undermine their own credibility is through their social media, which is often highly curated: the most flattering selfies and flashiest vacation snaps. Brown tells his clients that, as they speak, the defendant lawyer has a clerk at a desk going through their online presence with the sole goal of finding posts that undermine the plaintiff’s case.
The hope is that clients will be more cognizant of their social media use going forward — and that jurors, from their own experience, understand these platforms are a highlight reel, not a record of day‑to‑day life. Brown also prepares clients for the reality of surveillance, making it clear that defence insurers may follow them in search of a single “gotcha moment.” But if his clients are heeding his advice, he sees surveillance as potentially helpful rather than harmful.
For people with more “invisible” injuries, the key is to explain that there are good days and bad days, to acknowledge when something has improved with time or treatment — even to the point of being 100% better — and, critically, never to guess: if they are not sure about an answer, they should say so.
There’s also the growing use of validity testing and malingering allegations. Brown urges clients to be upfront with defence medical doctors, not to try to outsmart them, and simply to “do the test as best you can” rather than overthinking it. Behind the scenes, he says, plaintiff counsel must understand which validity tests are proper, how injuries can affect the results, and be ready to fight back when a psychologist suggests a plaintiff is feigning symptoms for money — a diagnosis that, “if it gets any real wheels,” can have a huge impact.
Putting everything into context enhances credibility and counteracts doubt, Brown notes, adding that the goal is to be likable, honest and upfront. On rare occasions, a client’s dishonesty only comes to light after he’s invested significant time and disbursements in the file; if the misconduct is substantial and intentional, “they’re no longer my client,” he says.
“All that said, a good case will always guide itself; it doesn’t need to be pushed by embellishment or deception,” Brown says.
For Brown, the danger of credibility attacks has always been that once they take hold, they contaminate everything else in the file. AI’s capabilities — and the fact that it has become an active player in virtually every case — have intensified that risk, even as they level the playing field between veterans and first‑year lawyers.
While it behoves the profession to pay more attention, his prescription for lawyers and their clients remains stubbornly low‑tech. The best defence is a good offence: don’t give the other side the opportunity to introduce the virus into the case — simply tell the truth.
“Times are changing, but as long as juries are here, this issue of credibility is going to remain with us,” Brown sums up. “The best way to remove that weapon from the other side’s hands is honesty.”
