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Tips on how to try soft-tissue cases effectively

Author / Coordinator: Michelle Lore
Minnesota Lawyer
May 2001

The credibility of your client is the key to prevailing in a soft-tissue case, Minneapolis plaintiffs’ attorney Peter Riley told attendees at a recent personal injury continuing legal education course.

Riley provided audience members with pointers on how to select and prepare a personal injury case, how to settle a case, and if it does not settle, how to successfully try such a case.

“It’s essentially an invisible injury,” said Riley. “The jury has to believe. And the insurance company has to be convinced your client is believable [in order to be willing to settle].”

Riley was the keynote speaker at a Minnesota Lawyer-sponsored CLE program, which was held at the Grand Hotel in Minneapolis on April 27.

Other presenters at the seminar included Minneapolis attorneys William Hurt, who spoke on untangling coverage issues in personal injury cases, Lisa Montpetit Brabbit, who described what to do when the insurance company won’t settle and Kay Nord Hunt, who discussed appellate issues.

According to Riley, soft-tissue injuries or “whiplash” — a word he contends is still OK to use — are the most common injuries resulting from car accidents.

In order to assess credibility, Riley suggested meeting with the client to see if he or she comes across as believable. A plaintiff must be sympathetic and sincere, he said.

Riley suggested looking at a potential client’s prior medical history to find out if he or she has been consistent in receiving medical treatment for the current injury.

“If [treatment] has been inconsistent, a bell should go off in your head,” Riley warned.

In the fact-gathering stage of the case, Riley continued, obtain all of the client’s medical records — from before and after the accident — and prepare summaries of them. Riley also suggested monitoring the client’s care — for two reasons — it is good client management and it helps you to keep an eye on what the client is doing as far as medical treatment. He advised obtaining updates at least every 30 days.

Resolving the matter

Many personal injury cases settle without going to trial. When trying to settle a case, Riley suggested drafting what he calls a “presentation letter.”

“Put your best foot forward,” he advised. Tell the defendant about the client’s background and don’t try to hide anything. Provide the facts surrounding the collision, describe the injury and the treatment, summarize the medical bills and wage loss, and explain in detail how the injury has affected the client’s life, said Riley. Explain why this particular injury is important to this particular plaintiff.

Riley explained that it is also important to manage clients’ expectations and to do it early on. Tell the client about thresholds and settlement values in other cases and explain to the client the realities of the situation. It is important to communicate the weaknesses of the case, he said.

If the case does go to trial, consider using medical reports in lieu of medical experts, Riley suggested, adding that it will save money and help to keep the case short.

“Keep it short and simple,” he said. “The shorter, more concise you can keep the case, the better.”

Riley also suggested using demonstrative exhibits and developing an opening theme.

“Stand up, look [the jury] in the eye, and tell them what the case is about in the first few minutes,” Riley observed.

Jury selection, Riley added, is one of the most important aspects of trial practice. To find out what the jury members are thinking, use open-ended questions, and welcome “bad” answers, Riley advised, adding that attorneys should ask questions that elicit the kind of people the jurors are.

“You want the helpers,” said Riley. “Determine who is going to be the most open, the most comfortable and most receptive.”