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Litigation tips for Michigan personal injury attorneys after McCormick v. Carrier

September 1, 2010 by Steven M. Gursten

No-Fault insurance lawyer shares additional tips on what Michigan’s new auto accident law means for car accident victims and personal injury attorneys

This is part two on topics and ideas that I’ll be covering today and tomorrow at the No-Fault Institute Seminar for the Michigan Association for Justice in Southfield. Yesterday, I discussed the objective manifestation requirement and the need to change Michigan’s jury instruction, now that the definition of objective manifestation has been changed with McCormick v. Carrier. I also discussed how personal injury attorneys would do well to still provide objective proof of physical injuries at trial, even if the legal requirement for doing so has changed after McCormick.

Today, I want to talk more about the jury instruction from M Civ JI 36.11, and specifically whether it should be changed and what exactly the phrase “…affects the plaintiff’s general ability to lead [his/her] normal life” really means today after McCormick v. Carrier.

Understanding this part of the model civil jury instruction in auto accident cases is really the key to personal injury attorneys obtaining full and fair damages on behalf of your clients.

First, the Michigan model civil jury instruction on 3rd party auto negligence cases clearly must be changed immediately. I am currently serving on a committee with Jim Borin, George Sinas, Judge Shapiro, Judge Redford and James Gross to discuss whether a change is now necessary. My initial impression is that the objective manifestation part of the jury instruction must now be changed. But I also feel that it is currently premature to change the rest of the jury instruction. There are currently eight pending auto accident cases cases that will shortly flesh out in far more detail what our new auto threshold law is. I should state that my initial feeling is that, unless there is a significant development with these eight pending cases, the rest of the instruction should stay as it currently reads.

Even though the rest of the jury instruction should probably stay as is, that does not mean that car accident attorneys should not explain in closing arguments what the jury instruction means. As the Michigan Supreme Court in McCormick v. Carrier has now defined “affects” and “general ability,” plaintiff attorneys can properly tell a jury that an injury caused by a motor vehicle accident must influence some of the plaintiff’s capacity to live in his or normal manner of living (slip opinion, p. 34), and that the plaintiff establish that the impairment has affected or influenced “some” of the injured person’s capacity to lead his normal life (slip opinion, p. 19).

Lessons for Michigan personal injury attorneys: understanding the difference between pain and impairment

Lawyers have a terrible time separating pain from impairment. But they are two very different concepts. And as a generalization, impairment matters more to juries than does complaints of pain when it comes to recovering pain and suffering damages in auto accident injury cases. Jurors – even less sympathetic jurors who may disregard pain complaints – will still give money based upon the degree of impairment, and the more impairment you as a lawyer can show and document after a car accident, the more likely you are to achieve a fair result for your client.

Pain is also much harder to prove. And the emerging social science research shows that many jurors, especially younger ones, do not appreciate accident victim’s experiences with pain from injuries. They seem less sympathetic, and as you will discover if you run focus groups, very young jurors don’t seem to care much about pain. Pain is also intangible, which means that what pain might mean to one juror might be very different from what it means to another.

This is the key: although jurors may not be as sympathetic about pain, they will compensate for impairment. The more impairment you as a personal injury lawyer can demonstrate on behalf of our injured client, the better the trial verdict.

Why personal injury attorneys should still focus on Kreiner v. Fischer

Which brings us back to Kreiner v. Fischer, even now in this new era of McCormick v. Carrier and the new auto accident threshold law in Michigan.

Personal injury lawyers would do well to relentlessly focus on the five Kreiner factors, even now, and even though it is no longer the law in Michigan if they want to achieve the fullest and fairest result for their clients. The five “non-exclusive” impairment factors from Kreiner are:

1. Nature and extent of the impairment;
2. Type and length of treatment required;
3. Duration of the impairment;
4. Extent of any residual impairment; and
5. Prognosis for eventual recovery.

I’ve written extensively on each of these factors in the past. These factors remain the key for personal injury lawyers to obtaining a significant trial verdict.

Even if these factors are no longer necessary to prove after McCormick v. Carrier, providing proofs to meet each one will certainly significantly increase the potential trial verdict on behalf of your client.

Last tip for personal injury attorneys: there is no magic

There really is no magic explanation as to why juries return more significant verdicts in some auto accident cases but not in others. Some personal injury attorneys shake their head and attribute it to magic, chance or luck when they hear about an outstanding result on what sounds at first like a “small case.” But if you’ve understood what I’m saying, you now understand that the case only appeared small, but likely the impairment was significant.

For example, the lawyers in my law firm, including myself, have been very fortunate in recent years to have six separate trial jury verdicts of a million dollars or more on what probably appeared to be very small cases. These six cases were all auto accident cases, and cases where the defense offer before trial from the insurance companies was between $0 and $25,000. Essentially, these were cases we were forced to trial on because the defense was taking such unreasonable stands on valuing these cases. So how could the insurance claims adjusters have been so wrong in their evaluation of these seemingly “small” auto accident injury cases?

If there is no magic, why did these trial results occur?

The answer is that the insurance companies in these auto cases made the terrible mistake – which is a mistake repeated all the time by insurance company claims adjusters and sometimes trial court judges as well- of focusing only on the injury, and ignoring the impairment. If there are injuries they do not like, or have little appreciation for, such as muscle spasms, bulging disks, “soft tissue injuries,” connective tissue and whiplash injuries, they will offer very little money on these types of injury cases. Mild traumatic brain injury cases, especially those of momentary loss of consciousness and delay in diagnosis and treatment, also fall into this category.

The mistake they are making is looking at the personal injury itself and assuming it is of limited value.
This is the same mistake that lawyers may be making now after McCormick, asking if “whiplash cases” or “soft tissue” personal injury cases will now be viable cases or not. The answer is maybe – it depends upon the amount of impairment! These are exactly the types of cases where decisions must be made on a case-by-case basis, based upon the effect on the car accident victim by his or her attorney.

Again, the mistake is assuming that these must be “small” injuries of inconsequential impairment. Take “soft tissue cases” for example. There are more than 40 well-respected, peer-reviewed journal articles today that say these types of personal injury can be permanent and cause permanent pain. For instance, Reggie White, the famed “Minister of Defense,” was one of the toughest football players of all time. But Reggie White had to quit playing football because of a little “soft tissue” minor bulging disc in his neck.

This mistake that insurance claims adjusters make all the time when evaluating car accident claims, is to focus on the injury only and to ignore completely the impairment. If there is an objectively manifested impairment of an important body function that has affected – now “some effect” and “influences some of plaintiff’s capacity to live his or her normal life” – that should be enough to at least create a question of fact. Again, it must be a case-by-case basis.

My formula for success for personal injury attorneys evaluating auto accident cases

Here’s my formula for success for auto accident cases. There is no such thing as a small case. There is such a thing as small impairments.

“Small cases” with big impairments and likable and credible clients equals a big case and likely, a big result.

Small offers of $0 to $25,000 on “small cases” with big impairments and likable and credible clients (usually) equal big trial verdicts.

Steve Gursten is recognized as one of the nation’s top personal injury attorneys handling serious car and truck accident injury cases and auto insurance No-Fault litigation. He is co-chair of the Michigan Association for Justice Auto Accident No-Fault Committee. Michigan Auto Law has the highest auto accident jury verdict in Michigan in six of the past nine years, according to Michigan Lawyers Weekly.

Related information:

McCormick v. Carrier blogs

The insurance defense perspective on McCormick v. Carrier

Told you have no case? McCormick restores car accident victim legal rights

Michigan Auto Law is the leading largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state for more than 50 years. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights to better serve you.

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