Today’s legal climate is largely the result of a concerted tort reform propaganda campaign. A lawyer  representing injured people must recognize how a personal injury case is likely to be defended to create jury skepticism. Insurance defense lawyers will launch innuendo to appeal to prejudices resulting from tort reform propaganda.

The Trial Lawyer. Sadly lawyers who represent the little people of society against insurance companies on a contingent fee basis have been demonized by tort reform campaigns. Now that this has been done, the first defense step is the introduction the Greedy Trial Lawyer myth. This tactic attempts to get jurors to focus on the plaintiff lawyer rather then the injured person as in the lawyer is bringing this case to make money. Always remember the case is about an injured person not the person representing the injured person.

The Impact. The second step is to down play or ignore the injury mechanism. For example it has been known for years the occupant of the rear ended car may have injuries despite the car not  being significantly damaged. This is because modern car bumpers are built to withstand rear end collisions of over 5 MPH without noticeable damage. Insurance companies know low impact crashes can and do cause injuries but they know in trial what matters is the perception of the event causing the injury.

The Injury. The third step is to attack the injury. Whenever possible this begins with the first medical record following the injury event. Often this is a cursory ER record with not much detail. Another favorite attack on the injury is “the preexisting condition argument.”  In reality a rear end collision whiplash predisposes a younger injured plaintiff to future neck conditions including surgery. Thus the younger plaintiff is left with a more significant preexisting condition when he is hit again later. More significant an older person who has advanced neck and back degeneration is more likely to sustain neck and back injuries from trauma. Insurance companies know this but this does not stop them from arguing the condition itself (not the trauma visited to the collision) is the cause of plaintiff’s problems. Honest doctors know the more advanced the spine degeneration the more likely there will be injury from trauma.

Treatment for Injury. The fourth step is to argue there is something wrong with the treatment. These arguments include lack of treatment, over treatment, diagnostic treatment, treatment noncompliance and gap[s] in treatment. Any argument to call into question the treatment or lack there of will do.

Damage Request. The final toy in the tort reform nursery is the “now you know why we are here” statement in response to plaintiff’s damage request. This is a disguised frivolous lawsuit statement made to prejudice against the McDonalds case. Here it is important to stay grounded on the injuries in our case and how these injuries impact our plaintiff. Even with the tort reform propaganda arguments of the defense, when we stay with the truth and reality of our legitimately injured plaintiff the jury will likely respond with fair compensation.

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