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"Beating Farmers Insurance at Their Own Game"

MTLA Seminar


February 1970

Guest Speaker: Richard L. Tousignant

We are all participating in a training program sponsored by the insurance industry.

As Plaintiffs’ attorneys we are being trained to accept less than fair compensatory value for our clients’ injuries.

Approximately four years ago, the insurance industry started lowering settlement value of soft-tissue claims. They found that by doing so, most lawyers were willing to accept the lower evaluation without a fight. Once that was realized they made a decision to lower those values even further.

Unfortunately, the Plaintiffs’ bar fought back by filing suit on minimal property damage cases with pre-existing conditions. The results, of course, have been disastrous. When there is a zero offer or minimal offer on a no property damage, pre-existing condition, soft-tissue case, and the insurance industry prevails in the jury trial the vast majority of the time. The industry then uses those statistics to make a claim that all soft-tissue cases have no value. This is simply not true.

The insurance industry has also used those statistics to dramatically drive down the value of a soft-tissue case. At the present time, if you have a case with a totaled out vehicle and no priors, you will get an offer somewhere between $5,000.00 and $7,500.00. If you question the adjuster as to what they are basing that offer on, they will either have no basis for the offer, or they will tell you "that’s what these cases are settling for." It is my position that what these cases are settling for is irrelevant. What is irrelevant is what juries are willing to do with soft-tissue cases where you have a nice client, large property damage, and no pre-existing condition.

The good soft-tissue cases rarely go to trial. The reason, of course, is that we have been trained to accept $10,000.00 to $15,000.00 on soft-tissue cases regardless of the facts and quality of the case or client. The reality is that very few good soft-tissue cases go to jury trial. The reason, of course, is that the insurance industry will get to the $10,000.00 to $12,000.00 range and the plaintiff’s attorney will usually accept that amount. Why, because we have been trained to do so by the zero verdicts, which really represent a totally different type of case.

Verdicts are readily available through the Twin City Jury Verdict Reporter. Those statistics show, that while there are very few good soft-tissue cases going to trial, when they do go to trial, they generate verdicts in the range of $20,000.00 to $70,000.00. There are, of course, some zero verdicts. However, the vast majority of the time, plaintiffs prevail if they are willing to take the time to fully and adequately represent their clients by taking the case to a jury trial.

The only way to break the training program of the insurance industry is for the Plaintiffs’ Bar, as a whole, to begin trying more cases. There is no other way to break the cycle than to let the insurance industry know that we will not accept inadequate compensation for our clients.

The following are ten things that I do in soft-tissue cases to help enhance my case and ultimately the jury verdict. These will not work each and every time. They should be used only as a guide and you should use your best judgment as to whether your case is appropriate for these suggestions.

PICK YOUR CASE/CLIENT

Not all cases are appropriate for jury trial. First of all, you need a client that is willing to go through discovery and a jury trial. We have all heard lawyers tell us that they cannot convince the client to go to trial. To me, that is an indication of a lack of confidence that the lawyer is expressing to the client. If the lawyer is confident in her abilities, it should be easy to convince a client to go through a jury trial. If the lawyer does not have enough confidence in himself, then how is he possibly going to convince a jury to believe his case?

Over the course of handling a file, you should meet with your client several times. You will develop a feel for whether this client’s story will sell to a jury. In a soft-tissue case, claims such as "my life has been ruined"; "I can’t go to work anymore"; or "I need to see the doctor everyday" do not sell to a jury. Instead, the client who continues to work full time and continues to have a normal regular life, but lives with pain and has adjusted her/his life to that pain, does sell to a jury.

Obtain the client’s consent before you put the case in suit. Let them know exactly what a lawsuit entails and make sure they are willing to go all the way with you through the jury trial. If you continuously find that clients are not willing to go to trial, then you need to assess your abilities to convince. Again, if you cannot even convince your own client to go to a jury trial, how are you ever going to convince a jury that your cause is just?

TEN TIPS TO SUCCESSFULLY TRY A SOFT-TISSUE CASE


1. PICK THE RIGHT CASE TO TAKE TO TRIAL

You select the case not the insurance company.


Don’t be afraid to admit your wrong and settle.


Be aggressive on the good case – let them know they are wrong and try the case.


What to look for:

Adequate property damage;

Nice/Likeable client;

Believable story.

What to avoid:

No property damage – plaintiff or defendant vehicle;

Relevant priors.

Unbelievable stories:

My life has been ruined by this injury;

I can never work again;

$20,000.00 worth of care hasn’t cured me but I need more;

I have to go to the doctor the rest of my life.

2. REQUEST FOR ADMISSIONS

Serve a set before discovery.

Serve the same set after the plaintiff and defendants depositions if defense has denied.


Serve a request for admissions after you receive the adverse examiners report.


3. NEGOTIATE THE ADVERSE EXAM


Get defense to agree that the no-fault adverse will not be used or referred to by adverse examiner.

If they refuse, then refuse to attend without a rule 35 motion (exam is not a matter of right).

If you have a chiropractor as your only expert argue that defendant should only be allowed to use a chiropractor as their expert.


4. PREPARE/PREPARE/PREPARE


Prepare your client for direct and potential cross.

This actually begins at the time of the deposition.

Know your case/avoid using notes.

If there is a possible negative, bring it out on direct.

Make sure your client is able to "sell" her damages to a jury.


5. CONVINCE YOUR EXPERTS IT IS IN THE PATIENTS BEST INTEREST FOR THEM TO TESTIFY LIVE:

Keep testimony short and to the point (18 to 20 minutes).

Ask relevant questions first, qualify the doctor later in the testimony.


6. MINIMAL CROSS EXAM OF ADVERSE EXAMINER

Use the request for admissions so you get all yes answers.

Financial cross to show bias.

Develop tie to the attorney:

Worked for in the past;

Worked for firm in the past;

Worked for defense attorneys principle in the past.

7. SERVE JIGS AND SPECIAL VERDICT FORM AS SOON AS YOUR CASE DOES NOT SETTLE IN MEDIATION

Let defense know you are serious.

Ask for Krummi vs. MSI definition of "necessary" is read to the Jury.

"When pain is directly related to the motor vehicle accident then any care and treatment for that pain falls within the No-Fault Acts concept of the word necessary"

Do not allow the impeachment JIG unless there has been Impeachment.

Request the new pre-existing condition JIG when defense is Arguing degenerative disc disease.


8. USE ILLUSTRATIVE EVIDENCE WHENEVER POSSIBLE

Model spine.

Colored drawings of the anatomy.

Use in opening, closing, and with doctors.

Enlarge photos of property damage, visible signs of injury such as bruising. (Don’t forget the deft vehicle.)

Enlarge portions of adverse examiners deposition transcript to point out helpful testimony such as financial info.


9. COMPARE DOCTORS IN CLOSING

What if?

Or

Services rendered/ what to lose what to gain.


10. WE ARE HERE BECAUSE THE DEFENSE IS UNREASONABLE

Juries assume that there is a lawsuit because the Plaintiff is unreasonable.

Show them that it is the Defense that is unreasonable by not asking for too much money.

Never use money in closing – "it’s what amount will fairly compensate."

Show Your Client To Be Honest And Cooperative

Use authorizations given to defense counsel to your advantage.

Ask adverse if plaintiff was honest and cooperative during the exam.