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How to increase the value of soft injury and whiplash cases by using “ice pics” and “grenades” in your vocabulary

April 17, 2013 by Steven M. Gursten

When I started practicing personal injury law nearly two decades ago, I was settling whiplash and bulging disk injury cases from car accidents for $75,000. Now many injury lawyers in Michigan are routinely settling these same injury cases for $7,500.

What changed? Many very competent injury attorneys in my own state of Michigan and many other states won’t even accept soft tissue injury accident victims as clients — regardless of the fact that the medical literature says soft tissue injuries can be very painful and permanent. To me, it seems we’ve allowed attorneys to be successfully brainwashed by the auto insurance companies and the defense lawyers that these very real injury cases are not viable.

As for the value of these cases, there was a trifecta of events that definitely lowered the values:

  1. Kreiner v. Fischer and the uncertainty of whether a case would even survive summary disposition in Michigan created uncertainly and lowered settlement values across the board for all types of cases.
  2. Allstate’s MIST program and Colossus lowered settlement values and exposed hundreds of lawyers who hadn’t taken a case to trial in years. Frankly, these attorneys had grown soft through two decades of cases settling or expecting cases would go into arbitration. They forgot the skills needed for trial, and what kind of proof juries would need to find these cases were worthy of compensation. We had to all go to school again and learn how to communicate with juries again in a changing world.
  3. The resulting jury verdicts lowered values. When Allstate insurance adjusters started offering $0 out of nowhere and forcing these cases to trial, lawyers who hadn’t tried cases in 20 years or longer got killed.

But the medical literature on soft tissue injury cases never changed

Today, there are more than 100, peer-reviewed medical journal articles that discuss “soft tissue” whiplash and connective tissue injuries. These journal articles state that such injuries are very real, and can be permanent and cause permanent pain.

When I was a new lawyer, at age 28, I tried a MIST-soft tissue car accident case against Allstate in Oakland County, Michigan. Keep in mind, Oakland County is considered a very conservative, Republican jurisdiction. Allstate’s offer at trial was $10,000.

Yet the jury returned over $1 million – actually a $1,060,000 verdict. And the injury was purely for what injury lawyers i would call a “soft tissue case.” There was no economic loss, as my client was almost 70. So the jury verdict was solely for pain and suffering for a soft tissue injury.

How to reframe the issues in soft tissue injury cases

In my case and in my subsequent soft tissue and whiplash cases, I did something that many injury lawyers failed to do. They allow the insurance companies to frame the case. So I started by reframing the case first. This involves moving the case away from the defense argument that “soft tissue” means the injury must be small and inconsequential; and helping the jury understand the dire seriousness of what a soft tissue injury really means.

To start, I always get the defense medical examiner to explain to a jury that “soft tissue” is everything – except your bones and teeth.
Keep in mind the following points:

  • Almost all mortal injuries are soft tissue injuries.
  • Conversely, almost all broken bones cannot kill you.
  • In fact our bones exist for two reasons:
  1. To provide the frame for your soft tissue, just like the wood in a tree exists to support the live-giving leaves. For example, our skulls are just brain boxes. The skull exists so we have something to carry our brains around in. A skull fracture injury is serious only because of what may be happening to our soft tissue-jello-like brains when this occurs.
  2. To protect the your vital tissues. For instance, the primary purpose of the skull is to serve as a box for our brains.

I then force every defense medical expert to admit that broken “hard tissue” is almost always non-life-threatening, easily diagnosed and usually easily fixed — think carpentry.

What can’t be fixed – the resulting soft tissue injury

On the other hand, a “soft-tissue” injury from something as small as an ice pick – to the brain, kidney, heart or any major artery – is certainly lethal.

“It’s just a soft-tissue injury” explains why a soldier throwing himself onto a grenade dies.

“It’s just a soft-tissue injury” explains why Reggie White – who is considered one of the toughest lineman in the history of professional football – was forced into retirement by a tiny bulging disk without impingement.

All of this is a matter of using your vocabulary to frame and illustrate the issues.

It is why “pro-lifers” don’t call themselves “anti-choicers.”

The way you frame and illustrate your client’s injuries does not change the underlying facts of your case. But it vastly changes how juries will respond.

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