Exposing the Defense Expert Playbook with Dorothy Clay Sims

Defense experts often rely on a familiar set of arguments in traumatic brain injury cases. The challenge for plaintiff lawyers is knowing how to identify those themes and effectively challenge them.

Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries.

This episode is for plaintiff lawyers who want to recognize and dismantle the predictable defense expert playbook in TBI cases. Dorothy Clay Sims reveals the recurring tactics they use and shares the research methods to expose their weaknesses.

In this episode, Tom sits down with attorney Dorothy Clay Sims, author of Exposing Deceptive Defense Doctors and a nationally recognized authority on defense medical testimony. Drawing on decades of experience, Dorothy discusses the recurring strategies she sees in TBI litigation and the patterns that appear again and again in defense opinions. She also shares practical steps lawyers can take to identify weaknesses in those opinions and build a stronger case for their clients. Dorothy shares insights on:

• Looking beyond the medical record to uncover critical evidence
• Challenging imaging and neuropsychological opinions effectively
• Researching and evaluating defense experts
• Preparing for deposition with a strategic purpose
• Avoiding common mistakes that can undermine a TBI case

Whether you’re new to TBI litigation or looking to sharpen your approach, this episode offers practical guidance for recognizing and responding to the defense playbook.

Connect

• Connect directly with Dorothy Clay Sims: https://dorothyclaysims.com
• Mentioned: Exposing Deceptive Defense Doctors
• Subscribe to Winning The TBI Case on Apple Podcasts, Spotify, YouTube or wherever you get your podcasts.
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• And remember, don’t just listen to the strategies, implement them!

Winning the TBI Case — Episode 22: Exposing the Defense Expert Playbook

Host: Tom Crosley Guest: Dorothy Clay Sims Runtime: 35:58

[00:00] Dorothy Clay Sims (cold open): What we found out recently in a case in California is the defense expert altered the test administration and/or changed our client’s answers 67 times during the examination.

[00:12] Announcer: TBI cases can feel like navigating uncharted territory. Your client’s injury is real, but proving it is where the real challenge begins. If you’ve ever felt like you’re missing crucial pieces of the puzzle, you’re in the right place. Welcome to Winning the TBI Case, where Tom Crosley shares the insights he’s gained from over 60 injury trials. Not just the victories, but the lessons learned along the way that make all the difference. This is practical wisdom from someone who’s been in your shoes and found a path forward. Winning the TBI Case: strategy, science, and storytelling.

When Dorothy Clay Sims discovered that defense experts were systematically lying about her brain injury clients, she made it her life’s work to expose their deceptive tactics. In this eye-opening interview, Dorothy shares the tools every trial lawyer needs to identify and challenge fraudulent medical testimony.

[01:18] Tom Crosley: Welcome back to Winning the TBI Case. I’m Tom Crosley. Today’s guest is Dorothy Clay Sims. She’s a lawyer who has spent decades studying how defense medical experts operate: how they write their reports, how they testify, tactics they use to minimize or deny injury claims. And if you’ve ever read a defense IME report and thought, “Oh, here we go again,” then this episode is for you.

We’re gonna walk through what Dorothy actually does for trial lawyers, when you should consider retaining her, what you can learn from her, and hopefully give a practical framework for researching a defense doctor and building a cross-examination strategy that’s clean, fair, and powerful. All of this without turning the courtroom into a boring medical seminar. So let’s get into it. Dorothy, how are you doing today?

[02:13] Dorothy Clay Sims: I’m good. How are you doing, Tom?

Tom Crosley: I’m doing great. So you and I have known each other for, gosh, a long, long time. Almost 20 years now — more than 15 years for sure. A lot of your background I’m familiar with, but we may have listeners who aren’t. So I wanted to start with: what drew you into studying defense medical testimony in the first place, carving out this niche in your law practice?

[02:42] Dorothy Clay Sims: Well, my motivation, actually, it’s this guy right here. His name was David Hansford Sims. He was my brother. He had a very severe disability. He could not ever speak, communicate. He would sit for hours on end shaking a sock. And I saw how he was treated, and it really bothered me. And I felt like I wanted to represent disabled people.

And then the more I did it, the more defense reports I got, the more I realized these people are lying. And so one day, after 60 cases in a row where the same doctor said my clients were faking based on the MMPI, I went and met the creator of the MMPI, and I showed him the last report, and he started laughing. And I said, “What’s so funny?” And he said, “If this doctor had been my student, I would have failed him. This is not an appropriate interpretation of the test.”

I knew that they were lying — defense experts in general — but I didn’t know how. And so he actually became a friend of mine, and we spent hours together, and he would give me examples, questions to ask, and this is how they manipulated the science.

And I ended up doing a lot of brain injury work because there’s neuropsychological testing, and that is an area where I’ve seen incredible fraud. What we found out recently in a case in California is the defense expert altered the test administration and/or changed our client’s answers 67 times during the examination. It got so bad that during the cross-examination, the judge says, “Okay, you can stop. We know they did it all wrong.” We didn’t want to stop, but it was terrible. So the more I get into this, the angrier I get.

I spent several years taking all these tests myself, having physicals performed on me to understand how those are altered. And then I worked closely with my husband, who’s a physical medicine and rehab doctor, and he ran a brain injury clinic. And he watches the videotapes of the defense medical exams, looks at the report, and then he goes into the body of the report and lists everything they misrepresented based on the video. He’s done probably 700 of these. And when I asked him what percentage of the time the doctor actually accurately reflected what happened in the report — knowing that they were being recorded — the answer is zero.

[05:06] Tom Crosley: Some years ago, you wrote a book called Exposing Deceptive Defense Doctors. I actually bought that book, gosh, 20 years ago maybe. I don’t remember when it was published. But it was one of those three-ring binder books that was multiple volumes, very expensive for a young lawyer at the time. But I recall that book being instrumental in helping me approach defense IMEs. This was not brain injury cases; these were typically spine injury cases.

Dorothy Clay Sims: Right.

Tom Crosley: But since that time, it sounds like you’ve been doing a lot of work on brain injury cases.

[05:39] Dorothy Clay Sims: Yeah, and that book has had significant updates. It’s probably twice as long. I have a lot of references to diffusion tensor imaging — I know you had a piece on that. There’s a lot of politics going into articles that are written saying don’t use it. It’s unbelievable in that field what’s happening. But yeah, the book is longer and there’s a lot more updated information in it.

[05:57] Tom Crosley: I need to get it. So we had as a previous guest Stewart Casper, who you and I both know very well. And he and I talked about the concept of the citation cartel.

Dorothy Clay Sims: Yes.

Tom Crosley: So I’m assuming that’s a little bit of what you’re referring to in your previous comment just now.

[06:14] Dorothy Clay Sims: Well, there is such a thing. And in fact, one of the problems we have is people are afraid to talk about it, especially professionals, because a certain number of defense experts are very litigious. But yeah, when you have a defense expert become the head of a journal, deciding what gets published and what doesn’t, and that individual doesn’t even allow an article published by the creator of a test that is being analyzed and criticized in that journal — they don’t allow the test creator to weigh in. It’s bad.

[06:41] Tom Crosley: I know you speak a lot around the country and even internationally, and I’ve heard you speak several times. You’re always very entertaining. Some of the examples you give are so incredibly outrageous as to defy belief.

Dorothy Clay Sims: Yes.

Tom Crosley: And I haven’t had those examples actually appear in my cases, because I’m usually dealing with pretty known quantities. I mean, I’ve had you do opposition research for experts. You provided packets of information. But what I’d like to hear is the normal — what are you doing for lawyers like me, either by helping us prep for these defense experts, or sometimes, I know, you’ll come in and do them yourself as part of our case? Help us understand what you’re doing when you don’t have this crazy outlier who’s lied on his résumé and put in degrees that he doesn’t have and things like that.

[07:41] Dorothy Clay Sims: I don’t know anybody else that does what I do, and I haven’t had a regular caseload in over 20 years. That’s all I do. But, for example, if I’m looking at a report, I can see there’s something. What I’ll do is I’ll take the report and I’ll take the transcript, and I will analyze what is in the transcript that the doctor misrepresented. Like yesterday, the doctor testified under oath, “Oh, your client has high blood pressure and diabetes, and that’s why there’s cognitive problems. And she told me that.” Well, in the transcript, she said, “I do not have diabetes,” and, you know, et cetera.

So I use some AI proprietary software to help with that, and I get a chart of everything that’s misrepresented. And then I go in — I have material on over 2,000 experts nationwide, and some of it’s 12,000 pages long — and I’ll use software to go in there and tell me what’s in the background that they testified to that’s completely contrary to the report.

And so I’ll analyze that, and then I either will tell the lawyer, “Don’t have me take this deposition, because this expert did so badly you need to save it for trial, because there’s no excuse for what they did” — which, those are my favorite — and then I just tell them what questions to ask and give them the exhibits. Or I just go in and take the deposition myself.

And when I do it, I’m using AI all day now. I have various AI sites open so that when the doctor cites an article, I can go in and say, “What’s the problem with the article?” Even if I don’t know where to find the article, I just describe it. In the middle of the deposition, it’ll come up with something like, “Oh, there were only three people in the normative database. This is not scientific.” And so when the defense experts start citing the literature, it’s clear they haven’t read it, right? And they don’t even really know what it says. I find that happens all the time. And so when you start using AI to go after them, it bothers them.

So I’ll either take the deposition myself or prepare the lawyer to do it. And sometimes I can look at a report and know immediately, over the phone: “Okay, you don’t need me at all. Here’s the problem, and here’s how to fix it.”

I also do private seminars where lawyers will come in and discuss two or three cases. They will come to my home in Oregon. My husband will look at the medical records and will tell them, “These are your weaknesses.” We record the whole thing. “This is what the defense will do. This is how to fight it. This is what you need to do to clean up the case or to prove it.”

[10:06] Tom Crosley: Dorothy, it’s interesting the way you described your practice, and I think it leads to what I’d like to talk about next, which is — in brain injury cases, because this is a TBI-specific podcast — there are recurring themes we see over and over again from defense experts.

Dorothy Clay Sims: Yes.

Tom Crosley: And what they’re trying to get the jury to buy into. And so I’d like to discuss first: what are the recurring themes? I know what I would think, but I’d like to talk to you about it. And then after we identify the recurring themes, I’d like you to talk to us about your strategies for overcoming those.

[10:44] Dorothy Clay Sims: Okay. The recurring things are so predictable that actually my husband and my son, who’s a plaintiff’s lawyer here in Los Angeles, have been tasked by Trial Guides with writing a book on it. And they’ve got the top 30 typical themes that are spewed forth by bad defense experts. And those themes are so predictable, it’s gotten to the point now where, when I find out who the expert is, I can write the report. I know what they’re going to say.

For brain injury, what they’re gonna say is there was no loss of consciousness at the scene and no evidence from a healthcare provider the patient was dazed, okay? That’s ridiculous, because dazed is an experience that the patient — the plaintiff — experiences. It doesn’t mean that they’re telegraphing it to the EMS or to the ER.

And if I could digress on that for a moment: I always get these reports that have a normal neurologic exam from the ER, and the EMS says no loss of consciousness, and there was a witness that saw it — there was a loss. What’s going on? And then I came upon a bad crash, a really bad one, with seven people, and one woman was dying. She had agonal breathing. There was one EMT that was available for seven people, and he was color-coding those that were most severe.

It occurred to me that the EMTs, when they’re working a crash site and there’s more than one person, they’re not going to do a Glasgow Coma Scale. They’re not going to test for awareness. They’re not going to ask the person, “Are you confused?” So they’re not documenting it. Plus, they may not document their records until 24 to 48 hours later, and they don’t remember.

Why does the ER say everything’s normal? And this really bothered me. I had a theory that the ER was making stuff up. So I wrote for my own three ER visits over the last 15 years. All three of them had a tremendous amount of things that the ER doctor did in the report that never happened in reality. About two-thirds of the reports — all three were false.

And so my concern is, how do we prove it? And that’s when I learned you can write for the metadata. In bigger hospitals, they keep track: when the doctor goes in the room, he clicks on an iPad, and that starts the clock running for when he’s with the patient. And if you show that the doctor spent seven minutes with the patient, there’s no way they could have done all the neurologic exam that’s listed in the medical records. And they will admit to that. So we as lawyers need to start automatically writing for that information in those cases where we think that the ER minimized what happened.

[13:21] Tom Crosley: Are you seeing that obtained in discovery in non-medical malpractice cases? Because I haven’t seen that yet.

[13:26] Dorothy Clay Sims: I have been begging lawyers for the last 12 months to start doing this, when I first learned about it, and they’re just now starting to do it. And in one previous malpractice case — and I’m going to talk about that in a minute — I told them, “I guarantee you that radiologist never looked at the brain scan.” And they said, “That couldn’t be. He wrote this long report.” They wrote for the audit trails, and the expert admitted they never looked at it and signed off on the report.

Tom Crosley: Holy moly. That’s crazy.

Dorothy Clay Sims: Problem. My husband and I do live international AI interviews, and we interviewed two radiologists — they’re on my website. And they both said, yes, radiologists believe that AI is better than they are. And so they’re signing their names to the reports but never looking at the scans. And what we’re finding — like in one case, there was a lemon-sized stroke in this guy’s brain, and AI missed it, and the doctor signed off on it. So that is an issue to be aware of for your own personal health and your family.

[14:31] Tom Crosley: I’ve got a friend who’s a neuroradiologist here in San Antonio. He does not want to do any of this legal case work, but I’m going to have to ask him about that.

[14:40] Dorothy Clay Sims: Well, think about this. Another thing you can do is, when they do look at it, the metadata will tell you how long they looked at it. And there was a case in Florida where the doctor looked at the scans for 60 seconds, and there were 5,000 slices.

Tom Crosley: Holy moly.

Dorothy Clay Sims: And so all they did is make a movie of 5,000 slices going — you know, 5,000 in one minute. The jury was furious.

Tom Crosley: Yes.

Dorothy Clay Sims: So you have to be careful. The other problem in a brain injury case is the plaintiff’s radiologists — unless they’re forensically retained, they are missing all kinds of stuff that I’m seeing when I open up the scan. So don’t rely on that if you have a brain injury case.

[15:21] Tom Crosley: I Completely agree with you there. I can’t tell you how many times I’ve had a retained radiologist — somebody I hired to spend the time to do an overread — of preexisting scans that came back as normal.

Dorothy Clay Sims: Exactly, and they can see the damage.

Tom Crosley: That ought to be part of the playbook for every plaintiff lawyer handling these cases.

[15:38] Dorothy Clay Sims: Well, the other thing is the right scan to ask for. If someone wants to email me — dcs@dorothyclaysims.com — I have what you want to ask for. You want susceptibility-weighted imaging at two millimeters. You want everything else at one. The more slices, the more you’re gonna find the damage. If it’s five millimeters apart, you’re gonna miss half of it.

So we talked about the myth that they’re fine at the emergency room. Well, they’re not. And how can you, as the lawyer, prove it? I’ve started asking all the lawyers that I work with: “Hey, I want you to ask your client to send you all text messages sent the day of the crash and the day after, and all emails.” And if you get those, you may very well find — about half the time we see this — stuff’s not making sense. They were clearly dazed, right?

[16:29] Tom Crosley: So I know that when we have other people — family, friends, et cetera — with the plaintiff in the ER, that becomes powerful. But a lot of times we don’t, right? We just have the record.

Dorothy Clay Sims: Right. [unclear]

Tom Crosley: All right, so I started this sequence of questions by saying, “Hey, what are some of the common defense themes?” I’m gonna throw out some of mine. At some point I’d like to shift into what we do, in your opinion, to overcome them.

So the ones I often see are: no objective findings on routine scans — normal imaging. Whatever the issue is must be psychological, or stress, or anxiety, or preexisting depression, or preexisting fill-in-the-blank, right? Inconsistent history — it’s not really the plaintiff’s fault that providers will write down historical information maybe differently, but, you know, they’ll get punished for if, God forbid, a record from Dr. A has a different history than a record from Dr. B. Secondary gain and exaggeration — almost always with defense neuropsychs, not always. And then sometimes we’ll see, with a biomechanical expert, the mechanism of injury was too minor to have caused this TBI.

Those are the ones that I often see. I made a little list before I started. Do you think there are any other big-ticket items that we need to make sure are included in the list of common defenses?

[17:54] Dorothy Clay Sims: Yeah, I think the claim that every mild traumatic brain injury gets better — we know that’s not true. And I think the one thing that I see the plaintiffs’ lawyers miss — and it’s not their fault, it’s the doctor’s fault — is there’s a lot more wrong with the client than you realize. Oftentimes these people have human growth hormone deficiencies and no one ever catches that, or they have a dysautonomia. I always tell the lawyers: make sure somebody measures your client’s heart rate and blood pressure lying down, sitting, and standing, because about a third of the time we’re finding dysautonomia, which means they can’t regulate their blood pressure. It can be fatal. It’s very serious. So we as lawyers need to do a deeper dive into the different kinds of things that a brain injury can cause.

But as to the defenses you talked about — I wrote them down — let’s start with the normal brain scan. Well, here’s how this rolls: the brain scan’s normal except for the areas where it’s not. And what I’ve had defense experts do is write reports calling them normal, but in reality, they’re not describing what’s on the scan, and they’re avoiding it.

For example, if your client has a lot of increased white matter, or little white dots on the MRI, that can be due to ischemic disease or trauma, depending on where it is. The defense expert will see those lesions and not describe them, and just pronounce it normal, because “everybody that age has those lesions.” Well, first of all, that’s not true. And second of all, if there’s a lot of lesions, that’s also not true. And third of all, if the lesions are at or near the gray-white junction, that’s trauma. And so they ignore all that literature and they plead ignorance.

But the other thing that they’re doing — they’re so deceitful. I actually had to get a bite guard from my dentist when I found this out, because I was grinding my teeth so much. I had this case where the doctor writes this long report, and he shows all these images, and he says, “You can see clearly the above images are completely normal.” And this is what lawyers should look out for. Okay, well, wait a minute: what is the series and slice number on that image? I want to find the image in my scan. And that’s when I found out it was someone else’s brain.

Tom Crosley: What?

Dorothy Clay Sims: Yeah. And you know what? This has happened to me once a month in the last six months. Someone else’s brain.

Tom Crosley: Wow.

Dorothy Clay Sims: So the tip is: if there’s no series or slice number, you can’t find it on your own scan. And my subpoena, which I’m glad to share, says the radiologist, when they show up for deposition, shall be prepared to share their screen and show me where the images are — because they always say, “Oh, I don’t have the ability to do that.” Well, that’s ridiculous. So if you don’t see any identifying factor on the scan, then it may not be your client. But if you do see a partial identification, then it’s probably someone else.

Plus, another game they play is, if the lesion’s up here, they’ll show you a slice down here.

[21:07] Tom Crosley: Right.

Dorothy Clay Sims: Or they can dial up the contrast and make it disappear.

Tom Crosley: Yeah.

Dorothy Clay Sims: I mean, there’s all kinds of little games that they play, right?

Tom Crosley: I think you have to have your own radiologist to combat a radiologist.

Dorothy Clay Sims: Yeah. And I always tell my own radiologist that I’m using, “You know, they may serve you a subpoena for your audit trail. You need to make sure you spend sufficient time on this.” And that’s helpful because it’s better for my client, independent of whether the defense asks for it or not.

Yeah, in that particular field, there’s incredible fraud going on.

[21:46] Tom Crosley: Okay, so how do you recommend lawyers build their case files so that the defense doctor can’t get away with this kind of stuff?

[21:58] Dorothy Clay Sims: Well, it depends on the doctor, and it depends on the position that they’re taking. One of the things that’s important is to use artificial intelligence. You’ve got to start using it now. Although I just got a decision where a judge entered an order saying all of the prompts and the research used for the lawyer’s AI research were not protected by any kind of privilege. So it’s kind of a new area that we’re dealing with.

But the reality is this: you can figure out a way to anonymize the medical records and feed them all in and say, “Tell me all the symptoms that could be caused by a brain injury.” You will find stuff in those medical records that you completely ignored — you know, certain blood abnormalities, oxygen saturation. There’s a goldmine of things.

And that’s helpful because I create a before-and-after chart where I list as many as 150 new diagnoses and symptoms. And then I say: Pre-existed? No, no, no, no, no, no. Can trauma cause? Yes, yes, yes, yes, yes. Was it found after the crash? Yes, yes, yes. So I’ve got like 150 different new symptoms, all of which can be explained by the crash. So when they take the position that it’s all in your client’s head, you can show that’s not true.

My client’s depression didn’t cause lesions in the brain, or atrophy of the brain, or an abnormal videonystagmogram, or saccades, or nystagmus. All you do is pick the objective findings and say, “Being sad doesn’t cause this, right?” It doesn’t cause a herniated disc, et cetera. It’s ridiculous.

[23:32] Tom Crosley: So actually, that’s my favorite cross-examination strategy of a defense medical expert: to go through all the medical records of my client and identify everything that is consistent with the claimed injury. Make them — you know, basically make them teach it to the jury — that here it is in the records in black and white, and this is consistent with the injury.

[23:57] Dorothy Clay Sims: Exactly, and then I attach the chart as an exhibit. But here’s another: usually it’s the neuropsychologist or psychologist that’s saying it’s all psychological, right? Oftentimes?

Tom Crosley: Yes.

Dorothy Clay Sims: So when that happens — I love it — I did a deposition yesterday of a neuropsychologist. “Your client has no brain damage.” Okay, did you read all the medical records? “Of course I did.” And here’s the key question: Did you understand them all? And there’s this long pause, and she says, “Of course not.” So, okay, that’s a problem.

And if they say yes, all you do is go into the records and look at a chart, or look at some numbers on a videonystagmogram or EEG, and say, “What do these numbers mean?” They won’t know. And so they don’t know what’s in the medical records. And if you ask them, “Are you an expert on the anatomy of the brain? Because if so, I’m going to ask you questions,” they almost always say no. And so they should not be testifying as to the cause of a brain injury when they can’t interpret the brain scan. They didn’t even look at it, and they don’t understand the medical records. That is ridiculous. They should not have the ability to do that, right?

For example, the Test of Memory Malingering: you look at 50 pictures. Well, if you give the pictures too quickly to the patient, they can’t remember them. The instructions say let the patient look at the images for 199 seconds. The defense expert cuts the time to 70 seconds. And when you say, “Wait a minute, you didn’t follow the manual, you did it too quickly. You caused them to fail this malingering test.” And they did it on purpose, I’m sure. And when we’ve caught them at this, the judges have said, “Why did you do this?” And their response is generally, “I don’t know.” Well, we know, right?

Another thing that happens is they change our client’s answers. They’ll give the MMPI or a test like that, where you fill in a bubble sheet, and then the doctor later goes and inputs the answers in the computer to get an interpretive report. But they change the answers. And so when we get the raw data, we can just check to see if the bubble sheet matches the printout — and it doesn’t, right? I mean, that’s just so stupid. It’s unbelievable. And yet they’re using this to conclude malingering.

In this case I was reviewing earlier for somebody, the doctor writes a report and says, “Oh, there was clear poor effort on an embedded measure.” And then I look at the tape, and what he did was he gave the Reliable Digit Span. You just repeat strings of numbers, right? And if you miss too many, you’re considered to have failed. Well, the doctor didn’t follow the instructions and read the numbers far too quickly. So again, he made my client fail.

But, are any of these tests valid in the first place? No, I do not believe any of these validity tests are valid. The theory is, if you don’t remember the old item that you looked at, and instead you identify the new item, you’re faking. Does that make sense?

Tom Crosley: Yeah, I mean, it doesn’t make sense to me, but I understand the argument that they use.

Dorothy Clay Sims: Yep. Right. Here’s the problem with that: psychological research tells us that when you’re under stress, you have a divided memory, which means you can’t focus as well. If you’re under stress being evaluated by someone that you want to write a good report, that’s a splitting of your attention right there. And most of these malingering tests were not normed under those circumstances, right? So you can get less than chance, and it’d be completely arbitrary and not malingering. So yeah, I mean, that is infuriating, because they’re calling your client a liar, and these tests aren’t valid.

[27:52] Tom Crosley: Dorothy, what do you do with the defense that the forces in the crash were not sufficient enough to cause the brain injury?

[27:58] Dorothy Clay Sims: Okay. If that’s done by a biomech or a doctor, they don’t know the position of the patient’s body in space, typically, when the crash occurred. But more importantly, what we do know is that even in low-impact crashes — the research done by Michael Freeman, an epidemiologist, tells us that even in a very low-impact crash, the probability that the neck injury was caused by the crash versus preexisting arthritis is over one million to one in favor of the crash. Because people have preexisting conditions that can clearly be made worse by even a minor crash, and they should not be allowed to get that to the jury.

[28:40] Tom Crosley: Let’s imagine that we’re talking to a lawyer who does not have a lot of experience in handling TBI cases, and they’re handling a TBI case — let’s call it a mild TBI case. The defense has now designated its experts: perhaps a neurologist, a neuropsychologist, maybe or maybe not a neuroradiologist. What should that lawyer be doing next?

[29:06] Dorothy Clay Sims: All right, a couple things. First of all, make sure you videotape the exam, and make sure that the videographer does not mount the camera on a tripod, but that they’re visualizing the body part the whole time, so the doctor can’t block it. Then you need someone to look at that. It takes about three hours to go through that video and analyze everything they did wrong.

Then you want to get the dirt on the experts. So first of all, email me, because I have stuff on 2,000 of them. I’m glad to share it.

Tom Crosley: Yeah.

Dorothy Clay Sims: You should also go out on your listserv and say, “Who’s had experience with this person?” and volunteer to share what you get. The third thing I do is I have my staff go on Lexis AI, and they put the expert’s name in, and they get all decisions nationally — because I’ve found expert witnesses are less likely to foul their own backyard, do something crazy in their own state, but they’ll take more chances in a different state.

I also will write for the state file of the doctor. Those state files are golden. And if someone works at a university, you want to write for the university file. Then you want to combine it all and use AI to tell you — especially if it’s 10,000 pages — how many times were they limited, stricken, what ethical issues are there, what problems with their conclusions, and let AI analyze that for you. Then you want to get the video analyzed. You also want to get the raw data yourself, so you can see if it’s even in your client’s handwriting.

[30:44] Tom Crosley: All right. I know that you take a lot of depositions. How often are you actually doing the defense witnesses in trial these days?

[30:53] Dorothy Clay Sims: Not that often, because our goal — and our goal really is — to have the witness refuse to testify or have the defense pull him. Like, I was supposed to do a trial two weeks ago on the defense neuropsych, and after we took his deposition, they pulled him. And that’s my goal. So it’s extremely rare. But if we do a really good deposition, then the cross at trial is very easy. You just stay within the four corners of the deposition and make them admit to all of their misdeeds.

[31:27] Tom Crosley: My favorite crosses are short, punchy, in and out — like sticking them with a stiletto in the belly. Forty-five minutes, my five strongest points, that kind of thing. How would you structure that kind of cross, say, of a defense neuropsych?

[31:47] Dorothy Clay Sims: I would do it two ways. One way is, if they really screwed up, you pick the top five things, and you don’t just talk to them verbally — you have a chart, because jurors are not listening. But if they see that chart, even if they can’t read the words, they see check mark, check mark, check mark. And now I’m starting to do the charts in the middle of the deposition and attaching them as an exhibit.

That chart is a cross-examination: You don’t have a degree in it. You don’t have a license in neuropsychology. You don’t have a doctor-patient relationship. You misrepresented the scores. You don’t want them to give you any concessions, because you’re wasting your time — it makes them look legitimate when you do that. You want to show the jury how bad they are. Just go right for the jugular — unless they don’t answer questions directly.

And I had a trial where we got an excess verdict, and I thought it was because of my brilliant cross-examination. And when we polled the jury later, they said, “Well, we didn’t understand what that blonde lady was saying, but we knew one thing: that doctor wasn’t answering her.” And I thought, well, shit, that’s all. All you’ve got to do is let them continue to not answer the question.

Tom Crosley: Right.

Dorothy Clay Sims: I mean, the reality — and I don’t know if lawyers know this — is that jurors make their decision not on what they hear, but on what they see. And if you played that deposition with the sound off, they would get it much quicker. They’re watching the witness. That’s what’s going to result in a favorable verdict: how they behave.

[33:16] Tom Crosley: Yeah. I love summary exhibits in cross-exam, because that’s what a jury will remember.

Dorothy Clay Sims: Exactly.

[33:24] Tom Crosley: Dorothy, if there were just three things that we lawyers took away from today’s interview that would help us better handle TBI cases, what would they be?

[33:35] Dorothy Clay Sims: I think number one: do your due diligence on the doctor’s background. Invariably, they have testified to the exact opposite of what they’re saying in your case. You just have to find that deposition. Invariably, they may have gotten in trouble in various states and left, and you need to find that. Do your due diligence on their background.

And number two: presume everything they’re saying is a lie and make them prove it. When they make a statement, ask them where the science is that supports it. Because the reality is, there isn’t any science that supports their position, but there is one hell of a lot of science that supports yours. And these people, with the right judge and the right set of facts, should not be allowed to testify. So never underestimate the willingness of some of these experts to simply lie.

And the third thing is: timing is important. Take a long time for your deposition. It’s expensive, but that is what settles these cases. If you do a good enough job, you’ll never have to try the case. But if you do have to try the case, you’ve got your roadmap right there, because you’ve done an in-depth analysis. You’ve taken the time, you know what their opinions are, there will be no surprises, and you’ll be ready.

[34:56] Tom Crosley: Well, this has been super helpful. I appreciate you taking the time to share with those of us interested in TBI cases your exceptional knowledge that you’ve gained over the last three or four decades of devoting yourself to taking down deceptive defense doctors.

[35:11] Dorothy Clay Sims: Well, thank you, Tom. It was a pleasure.

[35:15] Tom Crosley: Thank you for joining us on this episode of Winning the TBI Case with Dorothy Clay Sims, to help us learn how to better expose deceptive defense doctors in TBI cases. I’m Tom Crosley.

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