Litigating MIST Cases

A few updates on MIST cases

I just wanted to share a few updates with you on MIST cases.

A Caliornia attorney got a seven figure verdict on a MIST case. The jury did not buy the junk science defense from the insurance company.

A reader of my book recently hit for $250,000 on a MIST case with MD and DC treatment. Yes, it does work.

Recently, I sent out a demand to a self insured corporation that uses a major insurer as its claims adjusting company. I sent a cc to the risk manager and one to general counsel. The adjuster called and made some ridiculous offer. I replied with a letter, again sending the copies to the risk manager and general counsel. The risk manager called me. Settled the case for four times the specials.

Last update: I settled a case with a self insured company after filing. The settlement was for a minor and approved by the court. The settlement was 10 times the specials with $1,500 in property damage. (I had previously settled the case for the driver, the child's mom.)

Why are these results happening? Because plaintiff attorneys are learning to debunk the junk science and are taking these cases. Look at any industry and you will find the industry leaders do one thing: they learn all about their competition. The attorneys who are successfully handling MIST cases are learning all about the insurance company, handling these cases in the same manner, and studying how to handle them effectively. There is a way to handle these case effectively and efficiently to help your clients. But you must educate yourself.

Low Back Pain Updates

If you have a client with low back pain from a MIST case, you should read these reports. A study from the American College of Physicians and American Pain Society and published in the Annals of Internal Medicine talks about several areas of interest:

1. Diagnosis and Treatment;
2. Nonpharmacological therapies; and
3. medications.

There is some great information here. As an attorney representing people with these injuries, you need to make sure that you understand the medicine. You need to explain it to your client and be able to explain it, most importantly, to the jury. A good adjuster will know it, and you need to know it too.

What others are saying about the book

My good friend and trial lawyer extraordinaire Ben Glass wrote a piece in his Great Legal Marketing newsletter about the book. (By the way, if you are a personal injury attorney reading this, you MUST look at Ben’s materials. They are the best on marketing a personal injury firm.) Here it is:

You know I read a lot and am constantly recommending and giving books to my Mastermind group. Mostly, though, those books are about marketing and mindset. However, the book I’m recommending here is about neither. It’s actually a valuable book that would help many of you in your law practices.

Litigating MIST Cases: A Practical Approach was written by Jonathan Stein, a personal injury lawyer who lives and practices in Elk Grove, California. Jonathan is a charter member of GLM and is a smart marketer and good lawyer. Jonathan worked as an insurance adjuster during law school and first practiced in a firm that represented insurance companies. He settled hundreds of MIST cases and truly knows insurance company secrets.

MIST stands for “minor impact soft tissue,” a phrase that was coined by the insurance industry several years ago and that has been adopted by plaintiffs’ lawyers. Typically, vehicles involved in these crashes seem to have minimal damage. The insurance industry has used “MIST” in its propaganda to convince people (who will eventually be jurors) that plaintiffs in MIST cases are not really injured since there is not much body damage to the cars.

For some reason that many of his colleagues cannot fathom, Jonathan focuses his personal injury practice on MIST cases. His colleagues don’t understand what Jonathan is doing, because MIST cases have notoriously low value and are difficult to handle. Insurance companies make very low offers and then love to make lawyers go to trial because, if you have to try the case, you will lose money. Unlike many lawyers who have quit accepting MIST cases, Jonathan has found a way to help this population and have a thriving law practice.

I have read Jonathan’s book and recommend it highly. Frankly, a personal injury lawyer who does not handle MIST cases will benefit from the strategies and information Jonathan discloses. Jonathan’s book reads like one written by an experienced trial lawyer, which he is. He “tells it like it is” about handling these cases. He bluntly tells the reader that these cases are individually of low value and difficult because the insurance company makes them so. Nevertheless, he supports the importance of representing this segment of the injured population and declares that if you do many cases – not just one – you will help many people and make money.

The book is well organized and easy to follow.  In cogent and clear fashion, Jonathan reveals strategies for negotiating this specific type of case with insurance companies. True to the kind of guy Jonathan is, though, he goes well beyond the discussion. He has given us loads of forms, including a checklist, letters to use when initially gathering information, examples of various demand letters and responses to insurance company denials (with explanations for when to use each one), complaints, discovery and motions in limine. Jonathan has developed and actually uses these forms and techniques in his practice so, basically, he is revealing in this book lessons he has learned during his years of practice.

In short, I would recommend you buy Jonathan’s book and add it to the shelf where you keep the practice manuals you frequently refer to. Better yet, buy one for each of your assistants. After all, they spend most of their time doing what this book teaches them to do and they will find the book written so a real person, not just a lawyer, can understand it.

You (and your staff) will benefit from having this litigation tool nearby. Let me know what you think of his book.

About the Author: Ben Glass is America’s premier authority on effective, ethical and outside-the-box marketing for lawyers. While Ben is a personal injury and medical malpractice attorney, he has coaching and mastermind members who practice estate planning, criminal and traffic defense, worker’s compensation, ERISA litigation, worker’s compensation and more. He is also the author of the Ultimate Personal Injury Marketing and Practice Building Toolkit. (http://www.ethical-lawyer-marketing.com)

The attorney and chiropractor

Face it, most MIST patients end up at a chiropractor. And when they do, the chiropractor has all kinds of standard forms to fill out, just like when the patient goes to an MD. The one big difference: the chiropractor always asks who the attorney is on the file. And they usually get this information right next to some very good information about the accident.

The downside: the form then becomes useless. If you send in a form that lists you as the attorney, the adjuster will immediately conclude, rightly or wrongly, that either you referred the client to the chiropractor or the chiropractor referred the client to you. Under either situation, the case now has less settlement value.

The solution: ask the chiropractors to put the attorneys information in a separate spot or on a separate form. This will allow you to send in the intake form without worrying about the adjusters faulty conclusions.

Now Accepting Credit Cards

If you want to buy the book, but you don't want to send a check or use Paypal, I am now accepting credit cards. Feel free to contact me for my credit card form.

Watch those estimates

A new trend is developing: repairing bumpers. Okay, so repairing bumpers is not a new trend. But the insurance industry is pushing training for adjusters on how to repair any bumper, be it a Bentley or a Volvo, undamaged or crumpled.

I recently had a client with bumper damage. The adjuster came out and wanted to repair the bumper - even though the paint was off of the bumper. The car is a year old. They can't match the paint, but the adjuster would only give a couple of hours for repairs.

Clearly, the bumper needed to be replaced and painted to match. But, the adjuster put down for repairs because it keeps the case is a minimum impact. My client will be getting his own estimates now and those will be to replace the bumper.

Make sure you are checking those estimates on MIST cases. A replacement can add $300 or more to an estimate thus making it no longer a minimum impact.

Does it work?

Isn't that the $64,000 question? Or in this case, the $125 plus tax and shipping question. After all, if it works, it is worth the money. And if it doesn't work, you should buy something else.

I just settled a case. Client was in an accident causing no visible damage to her vehicle. The defendant had less than $500 in damage to her car. Client had $2,200 in treatment. Settlement pre-lit: $8,500. That is almost four times the special damages. On a MIST case.

So, yes, this system works.

Do adjusters care about studies?

I had someone ask me if the studies about accidents, such as by Croft and Freeman, are useful to cite in demand letters or reports from treating doctors. My response: no. Here is more of my response:

The adjusters are familiar with those studies, but they don’t really have an effect on the case. Adjusters have been trained that these studies are nonsense. The Croft and Freeman studies are good, but they are not convincing to the adjuster. I think that by including them you may be tipping off a new adjuster to the fact that it is a MIST case. (Believe it or not, some new adjusters don't know they are supposed to report MIST cases to a supervisor and they handle the claim like any other claim.) And, experienced adjusters are just not going to care. Its sad, but scientific literature doesn’t mean much these days.

Don't waste your time, energy or money adding this to your demand. It is not going to change the amount of the offer.

Article: Why injuries occur in Minor Vehicle Damage Collisions

From Janabeth Taylor comes another great article.  The article discusses some of the myths behind minimum impact junk science. From the abstract:

Analysis of the underlying math and physics reveals that reliance on vehicle damage alone to determine the severity of a collision is invalid. Discounting injuries based on lack of vehicle damage is not supported by either the laws of physics or the empirical data available.

Give this a read and use it to fight the junk science that makes these cass more difficult.

Fee Waivers

First, what is a fee waiver? A fee waiver is a document by which you, or your client, ask the court to waive the court costs. The document is kept confidential. If granted, the court waives all costs.

Second, why do you care? Because in a MIST case, the filing of the complaint may get the carrier to increase the offer by $1,000, $2,000 or $3,000. But, if you have spent $400 on filing the complaint, that $2,000 increase is only a $1,600 increase. This may make it more difficult to settle the case.

So, where appropriate, have your client file a fee waiver and see if you can get the court to waive the costs.