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Judge and Gavel
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  • Richard L. Duquette

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

1. Voir Dire – Have you heard about frivolous lawsuits?

2. Voir Dire – No visible bumper damage means no injury?

3. Defense Dr. – prior injury and old age did this; it was just a matter of time.

4. X-exam – attorney referral to doctor.

5. Opening – The defendant personally retained and paid me.

6. Closing – Plaintiff over treated

7. X-exam – unrelated medical problems

8. X-exam – medical lien exists

9. Argument – Plaintiff suppressed evidence or failed to produce it.

10. I’m paying defense expert costs.

11. Argument – “I” …(this or that)

12. Argument – These cases are monitored by plaintiff’s attorneys

13. Argument – After she hires attorney XYZ plaintiff’s bills increased.

14. Argument – The “g” forces stated by the medical Dr. are .06

15. Argument – Plaintiff over treated

16. Argument – Unrelated medical problems

17. Non-testifying co-workers said they wereunaware of plaintiff’s injuries.

18. Adjusters tape recorded statement of the defendant says . . . (good things)

19. The impact and delta V (velocity) is like a sneeze, cough, stepping off a curb.

20. God would not approve of Plaintiff’s claim.

Intended Effect

1. Insurance Rates and court filing will go up with a Plaintiff’s verdict.

2. There is a correlation. Plaintiff is a phony.

3. No causation; plaintiff is a phony.

4. Secondary gain by plaintiff; fraud without proof.

5. No insurance exists; defendant is poor; plaintiff is mean.

6. Plaintiff is building a claim

7. Plaintiff is a hypochondriac

8. Doctor has a financial interest in the outcome.

9. Plaintiff is hiding evidence and lacks trust.

10. Defendant is uninsured and poor.

11. Defendant is uninsured, defense attorney vouching, testimony and personal beliefs warrant defense credibility.

12. Juror self interest warrants a low verdict to discourage lawsuits.

13. Plaintiff is a phony; a case of fraud

14. The defense medical doctor is also a biomechanical expert.

15. Plaintiff is building a claim.

16. Plaintiff is a hypochondriac.

17. Plaintiff is a phony.

18. Defendant is more credible.

19. The forces of impact are low; plaintiff is a phony.

20. Plaintiff lacks credibility.


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”.)

Brault study says 2.5 mph delta V, hit many times and multiple whiplash victims existed with symptoms. Low speed impact causes whiplash disorders.

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.

Evidence code §786, 787, (credibility) attorney-client privilege, work productdoctrine. CCP 2018 Evidence Code 801, 802 (experts) psych. Profile.

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

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)

Irrelevant, improper character evidence, and expert testimony (DME is not a psychiatrist).

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.

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.

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

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.

Appealing to juror self interest violates the fundamental concept of an objective trial by an impartial jury (“Brokopp”, supra).

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.

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.

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.

Evidence Code 350, 352

See numbers 11, 13, and 14 above

See numbers 11 and 13 above

See numbers 11 and 13 above

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.

Evidence Code 352, passion, prejudice and appeals to sympathy are illegal.

*I would like to thank George Andreos Esq., the CASD list members and Carl Berkovitz, Esq. for their contributions to this article.


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