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Identifying & Overcoming Insurance Defense Trial Tactics in a MIST Case

This article is an attempt to identify and expose unfair insurance defense trial tactics, so deserving victims receive full justice.

As practitioners, we regularly see the injured in our offices pretrial. They move slow and stiffly. They grimace and worry about their health as well as interruption of the family’s income and bills. They worry because they cannot work. They ask for our help because the insurance adjusters promises have fallen flat i.e. “Mamm, we just need your tape recorded statement and written releases of your medical/employment records to make you a fair settlement offer”. No settlement. Third party bad faith is gone, and so is the motivation for insures to act fairly and promptly. Instead, they litigate – even if their costs exceed the plaintiff’s settlement demands. They drive the claim value down at any cost. As practitioners, we know this scenario all to well.

Injury victims are now forced into the courts system. The system’s response to these tactics that have deflected settlement is to divert them into mediation, in hopes of fairness and reducing the courts swelling caseloads. The hardworking mediator’s earn about $600 a case for three to four hours work. Judges can only try so many cases, just like trial lawyers. They get tired of it all. Even the defense lawyers’ tire of marching to the drum beat orders to save profits as well as having to protect their trial record. But, when forced into the trial corner by their corporate master, some resort to subtle prejudicial dirty tricks in court in order (in concert with their hired gun experts) to destroy our client’s credibility, often before we or the good trial judge can un ring the bell. Just think, if they played fair, there would be less motions in limine, less trial objections and side bars, less new trial and additur motions, appeals, and . . . more justice. Here are a few examples with responses referenced by footnotes:

Actual Testimony Intended Effect
1. Voir Dire – Have you heard about frivolous lawsuits? 1. Insurance Rates and court filing will go up with a Plaintiff’s verdict.
2. Voir Dire – No visible bumper damage means no injury? 2. There is a correlation. Plaintiff is a phony.
3. Defense Dr. – prior injury and old age did this; it was just a matter of time. 3. No causation; plaintiff is a phony.
4. X-exam – attorney referral to doctor. 4. Secondary gain by plaintiff; fraud without proof.
5. Opening – The defendant personally retained and paid me. 5. No insurance exists; defendant is poor; plaintiff is mean.
6. Closing – Plaintiff over treated 6. Plaintiff is building a claim
7. X-exam – unrelated medical problems 7. Plaintiff is a hypochondriac
8. X-exam – medical lien exists 8. Doctor has a financial interest in the outcome.
9. Argument – Plaintiff suppressed evidence or failed to produce it. 9. Plaintiff is hiding evidence and lacks trust.
10. I’m paying defense expert costs. 10. Defendant is uninsured and poor.
11. Argument – “I” …(this or that) 11. Defendant is uninsured, defense attorney vouching, testimony and personal beliefs warrant defense credibility.
12. Argument – These cases are monitored by plaintiff’s attorneys 12. Juror self interest warrants a low verdict to discourage lawsuits.
13. Argument – After she hires attorney XYZ plaintiff’s bills increased. 13. Plaintiff is a phony; a case of fraud.
14. Argument – The “g” forces stated by the medical Dr. are .06 14. The defense medical doctor is also a biomechanical expert.
15. Argument – Plaintiff over treated 15. Plaintiff is building a claim.
16. Argument – Unrelated medical problems 16. Plaintiff is a hypochondriac.
17. Non-testifying co-workers said they wereunaware of plaintiff’s injuries. 17. Plaintiff is a phony.
18. Adjusters tape recorded statement of the defendant says . . . (good things) 18. Defendant is more credible.
19. The impact and delta V (velocity) is like a sneeze, cough, stepping off a curb. 19. The forces of impact are low; plaintiff is a phony.
20. God would not approve of Plaintiff’s claim. 20. Plaintiff lacks credibility.


  1. The attached footnotes provide annotated responses, facts, and authority to help plaintiffs lawyers identify and overcome defense trial tactics in minor impact, soft tissue (MIST) cases. My hope is that the Plaintiff’s bar and court will put a stop to those tactics that impugn the integrity of the court and deny Plaintiff’s justice.
    False – the CA judicial council statistics show a decrease in filings in the last decade. Also, CA victim’s claims decreased 26%, whereas nationwide claims increased 8.5%. (LA Times, March 20, 1999– “Insurer’s Cut Car Claims in the Ninety’s”.)
  2. Brault study says 2.5 mph delta V, hit many times and multiple whiplash victims existed with symptoms. Low speed impact causes whiplash disorders.
  3. Baji 14.65 – aggravation of a prior condition. Injury and Neurology Clinic Magazine study says people go years without flare up – natural progression will not automatically go symptomatic.
  4. Evidence code §786, 787, (credibility) attorney-client privilege, work productdoctrine. CCP 2018 Evidence Code 801, 802 (experts) psych. Profile.
  5. Financial condition and lies are illegal. This opens the door to cross exam defendant existence of billing, a retainer, insurance, and credibility by impeachment.Hoffman v Brand (1966) 65 C2d 549, 553. Evidence Code 780
  6. Studies say soft tissue takes time to heal. Average recovery time 17 to 123 days –European Spine(2001). 24% still symptomatic after 1 year -Journal of Neurology(1995)
  7. Irrelevant, improper character evidence, and expert testimony (DME is not a psychiatrist).
  8. Irrelevant, many victims have no medical insurance and a lien is their only hope for treatment – merely a form of credit – that’s all. Evidence Code 402; MIL.
  9. Accusing the plaintiff of suppression of evidence without support in the record through hints, suggestions or insinuations is illegal. Keena v United R (1925) 197 C 148, 155. This also assumes facts not proven.
  10. Financial condition and lies are illegal. This opens the door to cross exam defendant existence of billing, a retainer, insurance, and credibility by impeachment. Hoffman v Brand (1966) 65 C2d 549, 553. Evidence Code 780
  11. Arguing matters not in evidence is illegal, and so is vouching. This is irrelevant. Evidence Code 352.Brokopp v Ford Motor (1977) 71 CA3rd 841, 862. Attempting to use closing to invite jury speculation on unsupported inferences or to introduce new evidence is misconduct. People v Bolton (1929) 23 C3d 208, 213. Also, so is stating personal beliefs.
  12. Appealing to juror self interest violates the fundamental concept of an objective trial by an impartial jury (“Brokopp”, supra).
  13. Personal attacks by counsel on the character or motive of an adverse party witness, or counsel constitutes misconduct. Stone v Foster (1980) 106 CA3d 334, 355.Las Palmus Association v Las Palmas Center Association (1991) 235 CA3d 1220, 1247.
  14. Evidence codes 800, 352, 402, and the Kelly/Frye rules limit testimony by experts. A biomechanic cannot render medical opinion as an M.D. i.e. force and g’s. They are simply not qualified.
  15. Evidence Code 352, 402. See number’s 11, 13, and 14 above. They have no “fee facts” knowledge of chiropractic in our community, nor knowledge of chiropractic prices per se.
  16. Evidence Code 350, 352
  17. See numbers 11, 13, and 14 above
  18. See numbers 11 and 13 above
  19. See numbers 11 and 13 above
  20. Kelly/Frye: Evidence 350, 352, 402. This reference to the “Allen” study is an over generalization of the entire population. It’s misleading, as the risk factors that increase susceptibility to injury are different in each case. The pulse is short. This study is criticized and not generally accepted in our scientific community. No one gets hurt stepping off a curb or sneezing, whereas accidents do hurt people.
  21. Evidence Code 352, passion, prejudice and appeals to sympathy are illegal.
  22. *I would like to thank George Andreos Esq., the CASD list members and Carl Berkovitz, Esq. for their contributions to this article.