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"How to Litigate Soft Tissue Cases"

MTLA Magazine
January 2000

Article Author: Richard L. Tousignant


INTRODUCTION


The MTLA and the ATLA are both providing seminars on how to deal with companies such as Allstate and State Farm and their low settlement offers. No seminar is going to tell you how to handle the low settlement offer. Collectively, the most effectual way to handle low settlement offers is to try such cases. If enough of us present cases to a jury successfully, we will change the insurance industry's opinion on the true value of these claims.

In order to win, you must first be willing to lose. There is a rumor going around the plaintiffs' bar, started by the insurance industry, that juries are cheap, cold-hearted, mean, and unwilling to award in the plaintiff's favor. For those of us willing to face a jury, these are only rumors.

For example, in the short period of time that the insurance industry has claimed M.I.S.T. and L.I.S.T. cases have no value; I have brought nine (9) cases before a jury. In all of these cases, property damage was less than $1,000.00 and all had priors with the exception of one. In October of this year, I also tried a case with severe property damage and no priors. The following is a list of the outcome of those jury trials.

Some would say that for the amount of time I have spent on these minimal impact soft tissue cases, I have actually lost money. In reality, when you look at the net verdicts and the amount of time one spends from opening a file to closure, I probably did. However, I certainly didn't do it for the money. I did it because I believed in my client's right to a jury trial. I believe in their right to have fair, compassionate resolution of their claims. I do not believe in simply accepting the insurance adjuster's last offer based on what the insurance adjuster, a mediator, or some other inexperienced lawyer is telling me juries are doing.

In these nine minimal property damage soft tissue cases, most of which had pre-existing conditions, the average net jury verdict is $12,119.77. The average gross verdict is $20,555.00. So why are plaintiffs' attorneys recommending and accepting $5-7,500.00 for minimal impact, soft tissue cases? Worse yet, why are plaintiffs' attorneys recommending and accepting $12-15,000.00 for major impact soft tissue cases with no prior injuries? I believe the answer is that most of us are not willing to walk into a courtroom for fear of losing.

In evaluating a case, I solicit opinions from experienced trial lawyers in my office, their insight as to the value of my claim, and what a jury may or may not do. By doing so, I call on years of experience from trial lawyers who have faced actual juries.

Insurance adjusters round-table a claim. In other words, they discuss "what cases are settling for" rather than what juries are doing. Even with the Colossus computer evaluation, the information fed into the program is "what amount cases are settling for." Therefore, every offer accepted by plaintiff sets the value for that type of case.

Until the plaintiffs' bar begins trying cases on a more regular basis, the insurance industry will continue to diminish the settlement value of claims. Any plaintiff's lawyer handling soft tissue cases should be trying 3-5 of those cases per year. If not, then they are more than likely selling their clients short of fair compensation for their injuries.

ENHANCING DAMAGES TO A JURY

Enhancing your damages in a soft tissue personal injury claim begins the first day you meet your client. Study the client. Ask the client pertinent questions about their injury and how they feel it affects their life. You can usually read from that client whether a jury is going to buy their story. In other words, if you are dealing with a minimal impact, soft tissue injury, and the client is telling you it has totally ruined his or her life, then it is probably not a case you want to take on or present to a jury. If you are not willing to go all the way with that particular client, then you shouldn't sign up the case.

Excessive chiropractic and/or medical care can be an insurmountable hurdle in a soft tissue trial. Therefore, even though we are not physicians, I do make some recommendations to my clients with regard to what is excessive care. In order for care to be salable to a jury, we must show that the care is helpful. The easiest way to show the care is helping is what I call a stair-step approach to the care. Let me explain, the majority of the care should occur shortly after the accident, and then care diminishes in a stair-step fashion up to the date of trial. I believe this type of approach gives both the doctors and the client credibility.

The discovery phase of your case is extremely important in enhancing damages. Your client should be prepared to freely discuss any and all problems that they believe are associated with the accident. One can always go into court claiming fewer problems from the injury, but you cannot go into court claiming more problems than you discussed in discovery without losing credibility. In addition, the client should be prepared to thoroughly discuss how those problems have affected their home life as well as their work and activities.

It has been my experience in talking to jurors after a verdict has been reached; that the trial begins the very second the potential juror walks in the courtroom door. While sitting in the back of the room those prospective jurors are analyzing the situation. They try to identify who the plaintiff and plaintiff's attorney is and who would be the defense attorney.

They look for organization on the part of the lawyer by the way they are dressed and how the counsel table appears. At the same time they are sizing up who they believe is the plaintiff, trying to determine what's wrong with them and what this case is all about. I believe some jurors come to judgment before they are ever picked to sit on the jury panel.

Your client must be instructed on three things. First, there is no down time once you leave your home to go to that courthouse for your jury trial, second, there is no recess until the jury verdict comes in and finally, there are no time outs. The client must be aware that during each and every second they are being watched by some potential juror. Therefore they must act accordingly and consistent with their testimony.

Credibility of the plaintiff is extremely important. Exaggerating symptoms or acting as though they are in pain in the courtroom will bring their credibility into question. Instead, I ask them to act normally, but keep in mind the jury is watching every move they make.

It should never take more than three days to present a soft tissue case to a jury. In fact, of the cases listed above, most were tried in 1½-2 days. This can be accomplished by keeping your voir dire, opening, closing, directs, and crosses all to a minimum. Most of the legalese we throw at the jury during these phases of the trial are ignored. Therefore keep it short and simple. Keep in mind that most jurors are not happy to be there. Boring them or dragging the case out with useless questions will do nothing to enhance your case and more than likely diminish the value in the juror's eyes.

VOIR DIRE

During voir dire, if you have a juror who has a neck or back injury, milk it for all the information you can. This includes how the injury has affected their life, how often it bothers them, what type of activities cause the problems, etc. That juror will be more than likely stricken by defense counsel, but you will have used that juror to show the rest of the jury that these injuries are real and can affect real people.

During voir dire, you also want to find jurors who have hobbies or jobs similar to your client's. You can then use that information during closing argument by looking that particular juror in the eyes when arguing and discussing a subject close to them. A good example would be golfing. If your client can no longer golf because of their back injury and you have a juror who does golf, you want to emphasize that point by looking right at the juror in closing and making a statement such as "how would anyone feel if they could never pick up a golf club again, or when they do play golf, to be required to play with excruciating pain."

In October 1999 I tried a case against an Allstate insured. During voir dire, it became clear that a potential juror did not like chiropractors. She was very defensive when it came to questions about chiropractic care. It eventually came out that her husband had a low back injury with complaints very similar to my client. Her husband was treating with Dr. James
Allen of the Minneapolis Clinic. The adverse examination was with Dr. Randa of the Minneapolis Clinic.

After learning what care was given to her husband by Dr. Allen, I decided to leave her on the jury even though it was clear she did not like chiropractic physicians. During closing argument, I compared Dr. Randa's statement "she should get on with her life" to what a "real doctor" such as Dr. Allen would do for a similar injury. As I was pointing this out, I never took my eyes off that potential juror. In that case I had an offer of $12,000.00 with a gross verdict of $57,000.00 for a purely soft tissue claim.

WITNESSES AND EXPERTS

Live testimony greatly outweighs videotaped testimony. As plaintiffs, we have a great advantage in having our treating physicians come live to trial. Because of the number of adverse examinations most insurance company doctors do, they are unable to leave their practice for live testimony. Plaintiffs' attorneys should take advantage of this at every opportunity. Since the defense doctor has testified by video, you can discuss his testimony with your doctor while they are testifying live. This will help diminish the testimony of the adverse. Also I believe jurors are more attentive to live testimony. Sitting a few feet from the jury enhances the doctor's testimony as well as giving the doctor more credibility.

There is no need for a lengthy direct of your treating physician. Get in and get out. Keep it simple and to the point. Try to avoid repetitive questions or legalese. Have a conversation with your doctor rather than a question and answer session. This is especially true when videotaping. I'm convinced we often lose a jury after the first five minutes of video testimony.

Have the threshold questions answered within the first five minutes of your doctor's testimony. That is when the jury is most attentive. After you have asked the threshold questions, you can then qualify your doctor. Questions regarding the basis for his/her opinion can then be asked prefacing most of the questions with the word "permanent injury." For example: "You said earlier that {blank} had a permanent injury, what were the objective findings that lead you to your conclusion?

I recently attended a seminar where the speaker held up a book on chiropractic. He said "if you are going to try soft tissue cases, you must get this book, read it, know it, and get parts of it into evidence." I strongly disagree. The jurors' attention span is short. They are not going to change their mind based on a book. Their decisions are made based on the credibility of the plaintiff, the facts, and last of all, the doctor. In fact, with a credible plaintiff, I believe you can win regardless of the doctor's testimony.

The examination of the plaintiff should be equally short and to the point. There is no need to go into a lengthy background history on your client. I believe it is best for the plaintiff to get into the accident facts, the movement of the plaintiff inside the car upon impact to justify the injury, and, in minimal property damage cases, the distance the car was pushed forward. The distance the car was pushed forward is imperative because your doctors are going to describe how a hyperflexion, hyperextension injury occurs. It doesn't happen due to the amount of property damage, but instead occurs by the car being pushed out from under the plaintiff.

There are three things you should do in dealing with the adverse examiner in front of the jury. They are attack, attack, attack. Try to attack the adverse examiner during voir dire. Sometimes I get away with it without objection; sometimes the judges will not allow it. I most certainly attack the adverse examiner during opening statements. Finally I attack them during closing arguments. I never, ever attack the adverse examiner during cross-examination. In fact, my cross examination of the adverse examiner in soft tissue cases is limited to the amount of examinations they do, the number of times they have worked for this attorney or their law firm, and how much they are being paid for the examination and their testimony. Generally speaking, I will have no further questions for the adverse examiner unless they have given me some extremely helpful information in the report or direct testimony.

I have yet to see an adverse examiner break down on the witness stand. They are not going to change their testimony for you. They are not going to ultimately say "well gee, I guess you're right, this person does have a permanent injury" so why bother? Instead, during closing arguments, point out to the jury that you had very few questions for the adverse examiner. You limited your questions because the adverse examiner is a professional. He is a hired gun for the defendant. He is an expert at testifying and the sole purpose of his testimony is to support defense counsel.

WHAT TO ASK FOR

In my last three-jury trials, one of which is not listed here because it was not solely a soft-tissue claim, I have received awards of future chiropractic care in the amounts of $10,000.00, $12,000.00, and $12,500.00 respectively. In all those cases the chiropractors testified live and made it very clear and made it very clear that the plaintiffs needed future care.

I have had a fair amount of success in asking for future chiropractic care. This is an area not considered by defense counsel and also an area not accounted for in the evaluation for settlement purposes. It is easy to explain to the jury that, at the very least, your client should not be a victim of the defendant's negligence and then have to pay his or her own medical bills as well as for their own future care. Juries find it much easier to award past and future medical damages in soft tissue cases than they do pain and suffering.

Finally, I believe the single most important factor is not to get greedy. I have never and will never ask for more than $100,000.00 for pain, suffering, disability, and emotional stress in a soft tissue case. That includes past and future. In reality I try to keep those figures in the $40-60,000.00 range. My reasoning is that I believe we offend jurors when we ask for too much money for a soft tissue type injury. While I will never get the $400-800,000.00 soft tissue whopper verdict, I believe I will win more cases for my clients on an individual basis.

CONCLUSION

Seminars are not going to cure the problem. The problem will only be cured by all of us placing our cases in suit and letting a jury decide fair compensation for our client. In the amount of time one spends in a seminar, you could have the vast majority of your trial completed.

It is easy to become complaisant and concerned when reviewing such publications such as the Twin City Jury Verdict Reporter ("TCJVR"). These publications should be used as tools, not as the sole means of assessing your particular soft tissue case. After all, how can anyone tell you the value of a soft tissue case until they have actually faced a jury and discussed with them the realities of the claim?

There is nothing wrong with losing. If you develop the ability to try a soft tissue case, you can try any case. While soft tissue cases are the most difficult cases to win in front of a jury, they are also the most challenging and educational experience you will ever have as a trial lawyer.

IN CHRONOLOGICAL ORDER

INSURANCE CO. OFFER DEMAND DESCRIPTION NET VERDICT    

Allstate -0- 10,000.00 Liability,zero property damage, priors -0-    

American Family -0- 10,000.00 Liability,zero property damage, priors -0-    

American Family -0- 10,000.00 Liability,zero property damage, 20 years of prior chiropractic care 11,500.00    

Farmers Ins. Grp. 1,500.00 10,000.00 Liability,zero property damage, priors, 8 mo. gap in care -0-    

Allstate 12,000.00 15,000.00 Liability, $600.00 property damage, no priors 6,000.00    

Northland Ins.  5,500.00 15,000.00 Liability, under $500.00 property damage; over 140 prior chiropractic visits 23,200.00    

Allstate 6,000.00 15,000.00 Liability,zero property damage, priors 23,300.00    

Allstate 7,000.00on day of trial 15,000.00 Liability,zero property damage, priors 15,078.00    

Allstate 6,000.00 12,000.00 Liability, $500.00 in property damage, no priors 32,000.00    

Allstate 12,000.00 "we will never pay more" None made Liability, car totaled, no priors 44,000.00