Nowhere is jury hostility and cynicism more evident than in the area of soft-tissue or connective-tissue injury cases.
You should prepare every case as if you expect to go to trial. If you are going to take soft tissue injury cases as part of your practice, you have to be prepared to try them. Otherwise, the insurance companies will see you as a paper tiger – costing you credibility. Your goal should be to identify those soft tissue cases that have the best prospects for a favorable result at trial. Nothing will enhance your credibility more than a successful track record of verdicts in similar cases.
A pessimist would see only doom in the current hostile climate for injury claims. There is, however, reason for optimism. Increasing numbers of lawyers are either mishandling soft-tissue injury cases or are avoiding them altogether, creating greater opportunities for trial lawyers who can develop promising cases effectively. Approached with the goal of always preserving credibility and being prepared to go to trial if necessary, soft tissue injury cases can still be a component of a successful personal injury trial practice.
Evaluation and Preparing of Connective Tissue Injury Cases: Credibility is Everything
The insurance industry’s success in poisoning the plaintiff’s personal injury well is old news. Nowhere is jury hostility and cynicism more evident than in the area of soft-tissue or connective-tissue injury cases. Consistent with the age-old trial lawyer wisdom that juries accept what they can see more readily than what they cannot, winning the connective-tissue injury case – involving injury that by definition cannot be “seen” – has become a far harder task.
This is not to say, however, that such cases lack merit or value. When properly selected, developed and presented, connective-tissue injury cases have substantial jury value. For the plaintiff trial lawyer, the trick is to realize that the jury landscape has changed, resist the temptation to take on every case, anticipate and diffuse the standard connective-tissue defenses, and package the best aspects of these cases effectively.
I can summarize the plaintiff lawyer’s goal in the area of connective-tissue injury succinctly: PRESERVE CREDIBILITY. In the vast majority of connective injury cases, your client has to overcome benign X-ray findings, negative CT scans, and normal MRI readings. With cynicism rampant, your jury must accept your client’s subjective physical complaints for your case to succeed. Therefore, everything you do to evaluate and prepare a connective-tissue injury case must take credibility into account.
Since you will almost certainly have little or any objective medical data to support your connective-tissue injury case, you need to look elsewhere for comparable evidence.
What follows are some practice pointers and pitfalls in representing connective-tissue injury cases. Each of the following “Do’s” should be part of every successful trial lawyer’s strategy in such cases, to help you evaluate and preserve the credibility of the potential case.
DO: Set up a meeting in person
To answer the question: DO I WANT THIS CASE? – have the potential client in to see you, in person, as soon as possible. Except in obvious no-liability cases, avoid the temptation to do over-the-phone screening. It is too easy to dismiss a case over the telephone in the press of a busy day, and you can learn many valuable things in person that you might overlook by telephone. Similarly, a case that sounds promising over the telephone can be a bust after you see and evaluate the potential client for the first time in person.
This does not mean, however, that the initial telephone contact need be limited to setting a time and a place. First, you can use the telephone contact as an opportunity to sell yourself and the law firm. Second, you can give the client instructions to follow in the meantime – how to deal with the insurance adjuster, address property damage issues, and preserve evidence. This will not only help the client avoid preventable mistakes, but it will also provide you the opportunity to demonstrate your competence.
Ask the client to bring as much information and evidence as possible. The client’s spouse or significant other should accompany the client to the initial interview. Aside from the issue of a spouse’s loss of consortium claim, a plaintiff’s close family members are often very important witnesses to your client’s pain and suffering. Co-workers can often be helpful witnesses as well, given their superior opportunity to observe your client daily, both before and after the accident.
DO: Scrutinize for pre-existing medical problems and intervening events
The single biggest favor you can do for yourself in handling soft-tissue injury cases is to think like a defense lawyer. If you were defending against the case, what would you do to defeat the soft-tissue injury case? What records would you seek?
You must interrogate your prospective client about his medical history, but do not rely on him or her to give you all the facts. There is nothing more devastating to your case than to find out that the post-accident symptoms mirror long-term pre-accident complaints. More often than not, clients will downplay the severity and significance of their pre-accident problems. If not discovered early on, this can be a problem. For example, if your client is giving a clean medical history to all of his post-accident treating doctors that is in fact untrue, you have a problem and may not even want the case. At a minimum you will want to orchestrate a way for the client to correct the inaccurate history. So as a starting point, get your client to give you the names of every treating doctor or health care facility you can find, and get the records.
Sometimes even this will not be enough. Find out how your client supports himself. If he receives social security, explore whether there is a disability basis for the payments. If so, there will be reams of records, either signed by your client or submitted by his pre-accident treating doctors, setting out the nature of the disability. These can be devastating, particularly if the defense lawyer gets her hands on them first. If the client has painted a rosy picture of pre-accident health while the social security records describe permanent disability, you have a problem that you need to address earlier rather than later.
Worker’s compensation records are another fertile area available to defense lawyers. Get them first and review them carefully to be sure that the medical history your client has been and will be giving is consistent with the provable facts.
Be very careful too about unemployment compensation records. In most states, workers can receive unemployment compensation only if they are able to work. Find out what your client has been doing since the accident for income. If he has been receiving unemployment, you may have a problem IF you intend to claim that this accident put your client out of work. Imagine yourself squirming when the defense lawyer gets your client to acknowledge that he did, in fact, complete and sign a form stating under oath that he is physically capable of working, just so he can collect an unemployment check!
DO: Manage your client’s medical care, but do so unobtrusively
In obvious injury cases, involving fractures or other serious, objective injury, your client’s choice of health care providers may suffice. In soft tissue injury cases, however, letting your client fall into the hands of unsympathetic, insurance-oriented health care providers can be the death of your case. The fact is that when it comes to soft tissue injury, the medical world is divided into two camps – those who embrace and understand the significance and complications of soft tissue injury, and those who reject soft tissue injury victims as malingerers and frauds. Become knowledgeable about which doctors in your community are likely to be supportive and which are not, and steer your clients away from those who are unlikely to accept your client’s complaints as valid. If, in order to win your case at trial, you have to take on your own treating doctor as a hostile witness, your case is likely on its way to a defense verdict.
Another reason to stay on top of and, if necessary, manage the medical care is to help your client avoid unnecessary and duplicative treatment. For example, chiropractic treatment can be a very beneficial form of treatment, but excessive reliance on it is often counterproductive from a legal perspective. Chiropractic is most helpful for presenting a soft tissue case when it is part of a larger, global medical effort to assist your client’s recovery from injury. If your client wishes to pursue chiropractic, see if you can arrange for the family doctor to make the referral. If your client’s symptoms persist despite a limited course of chiropractic treatment, you should speak with the chiropractor about making a referral to an allopathic specialist – preferably, for obvious reasons, one who is both understanding of soft tissue injury and open minded regarding chiropractic. In addition to helping your client get quality medical attention, you are enhancing your treating chiropractor’s credibility by identifying him with the mainstream medical community. What better endorsement for continuing chiropractic treatment than a chiropractic referral back from a board-certified neurologist or orthopedic surgeon?
In espousing monitoring of your client’s medical care, however, you must be careful not to interject yourself into your client’s medical records. At all costs, avoid direct referrals from yourself. There is little you can do to harm your client’s case more than to have the doctor’s records reflect “the patient is here on the request of his personal injury lawyer”. If the client has a good relationship with the current treating doctor, have the patient request the referral to the specialist. The client should be instructed to avoid telling the doctor that “the lawyer sent me”.
You must consider the need to educate the doctor in specific instances. Even doctors who want to be supportive may not know the requirements of proof in a legal setting. “More probable than not” is the correct standard in civil cases, not the “medical certainty” with which many doctors are trained.
Finally, when it comes time to nail down your medical experts on the critical medical issues in your case, make sure that the expert has everything that the defense will get in discovery. The expert must have not only her own records but also the records of the other health care providers. If there is harmful or damaging material, either from before the accident or since, make sure to give this to your expert before you get the opinion. It is much better to give your expert the opportunity to review and put harmful material in context than to wait until the expert’s deposition and hope the doctor says the right thing on the spur of the moment.
DO: Consider the power [and problems] of property damage
Because recovery of significant damages in soft tissue injury cases depends so strongly on credibility, you must take the visual effect of property damage into account.
This applies most obviously in automobile cases. If you have an automobile accident case in which the vehicle containing your client at the time of the accident sustained visually significant damage, be sure to preserve and display photographs of the property damage for the jury. A plaintiff who claims soft tissue injury that is not demonstrable on objective studies such as MRI and CT needs all the credibility he or she can get. Showing the jury photographs of significant property damage sends the message that this, indeed, was a significant impact.
If, on the other hand, you have a vehicle that looks unscathed from the impact, you face an uphill battle. It’s bad enough that you can’t see any damage to your client! Think very carefully about accepting low- or zero-impact cases. At a minimum, you will need strong medical testimony to explain to a jury why the apparently low impact collision can still have serious medical repercussions for your client. Be prepared to analogize for the jury. For example, I have used the example of the scrambled egg. If you take a fresh egg, right out of a package, and shake it vigorously with your hand, you will break the yolk inside and scramble it right inside the shell. Put the same egg back in the package, and ask someone to pick out the egg with the scrambled insides. It can’t be done.
Make sure all your treating doctors are aware of the extent (or lack) of property damage. Too often the patient will overstate the speed of the vehicles involved or the damage sustained by the vehicles, and the medical records will reflect this overstatement. Left alone, this becomes a double weapon for the defense. They will argue that the plaintiff is overstating the seriousness of the accident in order to recover more money. They will also argue that the doctor’s opinion is flawed because it is based on a description of an accident that was far more serious than what actually occurred. You can address the second argument at least by providing the doctor a copy of the accident report, collision damage estimate, photographs of the vehicles, or other information showing the extent of property damage. You won’t cost your client anything since the defense will offer this evidence if you do not, and it will enable your doctor to anticipate and respond to questions concerning injury in the face of little property damage.
DO: Refuse pre-suit statements and defense medical examinations
There is nothing to be gained by letting the insurance company take a pre-suit statement from your insured. It only provides a second bite at the apple when the civil rules in every state permit only one. Some clients (and, unfortunately, lawyers) labor under the illusion that if they are cooperative with the insurance company, the insurance company will treat them favorably. While there may be some tactical basis to do so, to permit a statement without restrictions is asking for trouble.
If I have a case I know will have to go into suit, I refuse the pre-suit statement unless there is a statutory or policy-based requirement to submit. In cases in which I believe settlement prospects are realistic, and I believe my client will appear favorably, I sometimes agree to the pre-suit meeting – with conditions. The insurer must agree that the meeting will not be recorded in any way, and nothing in the meeting can be used later for impeachment purposes. If the carrier protests, I explain that I assumed the meeting was to explore settlement in good faith, not to gather information or material to be used for later impeachment – and if my conditions are unacceptable, then perhaps I have miscalculated the carrier’s true purpose in requesting the meeting. What then results is either the carrier refuses to accept the terms and suit is filed shortly thereafter, or the carrier agrees to the terms, and it provides you a bonus opportunity for a face to face meeting with the carrier to talk about settlement.
Be aware of the rules within your jurisdiction regarding pre-suit defense medical examinations. In Maine, the circumstances in which the opposing party can force an examination are limited, and the penalties for failing to comply are few. Assuming no statutory or policy-based reasons requiring such examinations, there are almost no reasons to allow your client to be examined by the insurance company’s doctor. While under the civil rules in most state and federal jurisdictions, the opposing party is entitled to a defense examination, the defense doctor is at a distinct disadvantage because of the inevitable gap between the injury and the defense examination. You yield this advantage to your opponent if you permit your client to be examined before suit, let alone before she has reached a medical end result.
 Never refer to a defense examination as an “independent” examination. There is no such thing. Under the Maine Rules of Civil Procedure, based upon the federal rules, the word “independent” never appears. If you think of and refer to the examination as independent, you will convey this subconsciously to the jury when in fact the message you need to convey is that this is the defense lawyer’s doctor.
DO: Be open and truthful with your client
Being open and truthful with your client from the outset is obviously at the core of your responsibility as a lawyer. As a trial lawyer representing injured people, this is often a matter of self-preservation. Without an open and honest dialog with the client, a decent soft-tissue injury case can get out of control.
You do your client no favors when you sugarcoat bad information. I learned this first-hand early in my career, when I represented parents of a teenage girl killed in a violent car wreck. The girl was lovely and talented, and needless to say the parents were devastated. Our first few meetings were almost without substance as the parents did little more than weep and talk about their daughter. As a result of my inexperience, I did not discuss the details with them until I felt they were up to it. I had enough to do in gathering the facts, preparing the case, and pressing for resolution by suit or trial.
After several months, the parents came in to see me. They asked, for the first time, about the details of the claim I was pursuing on their behalf. I started to explain to them about my state’s statutory cap on wrongful death damages. They became livid. How could I have met with them so many times without once letting them know about such draconian limitations? I was dumbfounded. I thought I was being sensitive and caring by not bothering them with the details. Struck by their strong reaction, I went to the senior shareholder in my firm with my confusion. His advice was simple: “You’re not their priest. You’re not their therapist. You are their lawyer. Act like one.”
From this experience, I learned not to hide or shade the facts for my clients. Instead, I regard the relationship with my clients as similar to what I would expect of my doctor. If medical testing reveals that I have a serious health problem, I don’t want my doctor to hold back the truth to protect me. I want to know what the problem is, what we can do to treat it, and what the odds of success are. So, too, should the client have all the information, good and bad, so intelligent decisions can be made.
This often entails hard work in the soft tissue injury case. Without your input, the client may regard the case as a slam-dunk: He was stopped at a light, the lady rear-ended him, his neck hurt, and he required treatment for it. In the newspaper, he reads about juries paying millions of dollars for such cases! If you don’t get on top of and control your client’s expectations early, you risk problems down the road. Explain to your client why zero-property damage cases are difficult. Explain why the prior medical history is relevant. Explain why his two-month gap before seeking treatment creates a problem. Explain why the two subsequent accidents were not helpful to his case.
DO: Think twice before requesting a medical report
For some lawyers, requesting a medical report is as automatic as breathing. This is not necessarily a good idea. Ultimately you cannot control what the doctor puts in a report. Even the most patient-oriented physicians will include information and opinions that you will wish had not seen the light of day. The more your doctor commits to writing, the more fodder for attack by the defense.
I see this in reverse all the time. A neuropsychologist favored by the defense in Maine for insurance examinations writes exhaustive, single-spaced, twenty-plus page examination reports. He includes multiple scholarly citations with his reports. At first, such reports can be daunting. On close examination, however, I find that the doctor’s level of specificity leaves him wide open for cross examination without any weasel room. As a result, preparing for cross-examining this doctor is a pleasure, not a chore!
Before requesting a report, ask yourself why you want it. If the insurer is one that you know won’t settle, why bother sending a report at all? If your jurisdiction is one that does not require experts to author and sign a report stating the opinion, consider foregoing the doctor’s report. Instead, spend time drafting your Rule 26(b)(4) expert witness designation carefully. Be sure that the doctor sees it, however – you do not want to be embarrassed by stating an opinion that your own doctor rejects under oath.
If a report is required in your jurisdiction, or you have decided tactically that a report would be useful, avoid writing a standard letter requesting a report. A standard letter asking for a report will probably yield a standard report in response. In soft tissue injury cases in particular, you want your client to stand out in order to overcome cynicism. You want your doctor to convey particular characteristics and information about your client, not about patients in general. If at all possible, go visit the doctor before obtaining the report. If that is not possible, at least try a telephone conference with the doctor. Of course, in either case, you should make sure the doctor has all the records and accident information in advance. Even if the doctor doesn’t read it all, at least she will be able to say under oath that all the information was made available to her in advance of her offering her opinion.
DO: Be reasonable in your negotiations, and push hard for trial if you fail
As I said, credibility is everything. This applies not only to your client but to you as well. You need to acknowledge that while you are capable of delivering blockbuster verdicts in soft-tissue cases at trial, blockbuster settlements in soft-tissue cases are rare. If you make blockbuster pre-suit demands in your soft-tissue injury cases, you make it very easy for the insurance company to deny the claim. If, on the other hand, you make settlement demands that are reasonable and develop a track record of success in soft tissue cases at trial, you will give the insurance company a real basis to take your demands seriously.