A soft tissue injury is the result of some form of impact. This impact can come from any source, but the most common soft tissue injury cases are automobile accidents.Whenever soft tissue injuries are claimed, it is likely that you will be under surveillance at some point. Thus, if you would not want jurors to see something in a court of law, then don’t do it.If there is something that you have done even once since the injury, then you must come clean in deposition or risk impeachment and a complete loss of credibility. For example:
- Instead of “No, I can’t jog anymore,” you should explain: “I used to jog three days a week. A few times since the incident, I have tried, but I could not make it far, or my back was in so much pain for the rest of the week that I just decided it wasn’t worth it anymore. A couple times I would wait a few months to see if it had improved enough, but so far the answer is no. If I push my body to jog, I regret it.”
- Instead of “No, I cannot mow the lawn anymore,” say: “I used to mow my own lawn. Now, I use a lawn service. A couple times he had to cancel, and I couldn’t stand looking at the grass out of control so I did it myself. Both times, I spent all night soaking in a hot bath, taking Ibuprofen, and begging my wife to rub my back and neck. If I have to, yes I can. If I do, I can count on being in bed for two days.”
There are cost considerations to pursuing a soft tissue injury case. One of the most important things to consider is the likelihood of recovery and what is a fair recovery, and compare these to the costs of your time and emotional investment. When you have had this discussion with your attorney, and both you have determined you are willing to proceed, you must commit to the case as diligently and passionately as you can, but you also must be aware of the financial realities.
A soft tissue case is not the same as a catastrophic injury case, and the outcome in terms of recovery should not be mistaken for such. Soft tissue injury cases are some of the more difficult to prove and to obtain a full recovery. They lack definitive medical evidence that can persuade a jury in your favor, and they often raise the specter of the “ambulance chaser/whiplash faker” stereo-types portrayed in the media. Therefore, it is absolutely necessary to avoid overreaching. Always keep it straightforward and concrete.
There is essential evidence in most soft tissue injury cases. Consider:
Emergency Personnel – Your attorney will gather the first responder reports from the emergency personnel. This includes fire fighters, ambulance personnel, and police officers. Once the records are gathered, these witnesses will be interviewed.
- If you have refused treatment at the scene and told everyone that you felt fine, these “denies pain” statements are likely to be recorded in the reports. This is common because soft tissue injuries usually do not cause pain for the first 24 to 48 hours. Emergency personnel can be an invaluable source to discuss how frequently they see individuals who are not in apparent distress at the scene, but later show problems or injuries that were caused in the collision. Most emergency personnel will confirm that this is true. Your attorney will let them know what injuries you have developed, when they were documented, and what physician linked them to the accident and why. This will give a sense of credibility to your story and predicament and alleviate the suspicion that you are just trying to sway their memory or opinions.
Treating Doctors – Your attorney will speak to your doctors just as the emergency personnel. It is important to let the doctors know up front that you are not claiming that you are permanently disabled. Rather, you are claiming that your life has been unfairly altered, and compromised, and you need the doctor’s help to explain to the jury how seriously a soft-tissue injury can impact a patient’s day-to-day quality and enjoyment of life.
- Injured bodies break down faster than healthy bodies. A common and effective way to describe the resulting deterioration is to have the doctor describe an “age-advancement” result of the injury. For example:
- “Yes, Jill can still do all of those things, but because of this injury she does them the way a 50 year old woman would instead of the way a 35 year old woman would. The injury has aged her body by about 15 years. When she is 60, she will already be as aged as someone 75. It will continue.”
- With this type of explanation, your jury (or adjuster if you still are in settlement talks) can understand how an injury that did not stop you from living has nonetheless caused a tremendous loss of some of the joy and ease of life.
Physical Therapist – If you underwent therapy, those records and interviewing the therapist is vital. If the therapist presents well, you will want him or her at trial. On the other hand, if the therapist comes off as someone who was billing $60 an hour just to put a hot pack on your lower back, it likely will play into the defense theory that you suffer minor discomfort and you’re just trying to milk the system. Most jurors are not impressed with someone who charges for the equivalent of placing a heating pad. If you oversell these cases you will lose all credibility.
Before & After Witnesses – To establish a pre-injury baseline, it’s important for your attorney to speak with the people who knew you before the injury: family, friends, co-workers, church members, etc..
- If you used to play on the company softball league, but now can only run the concession stand, that is a loss. On the other hand, if you played on the team eight years ago, don’t go there. Don’t talk about all the things you used to do, while failing to tell (or even realize) that you have not been doing them for years before the injury. This is not an indication of dishonesty. It is simply that time flies and we all tend to remember ourselves as we were at our best and to romanticize about when we’ll “get back in shape” and start doing all those things again. Then an injury comes along and it is clear that it will never happen.
- Simply put, you will have a difficult time convincing a jury that the injury is all that came between you and getting back to your old self, performing usual activities that you once enjoyed before you were married, or had your second child, or started traveling extensively for work. Rather than lose credibility, spend your energy and efforts explaining how much more difficult it is to work full-time and run a household with constant low-back spasms, or to care for a rambunctious four-year-old when you have cervical pain, or to lift your carry-on luggage into the overhead bin when your shoulders are now weak from a tear. Focus on the life-style hindrances that you know your medical doctors will back you up on at trial.
The Defense Experts – Believe it or not, but you can use a deposition of the defendant’s expert to lock “bias” information into the testimony so that you can use it at trial. Your lawyer should be able to establish that this doctor works almost exclusively for defendants and makes a tremendous amount of money doing so.
- Particularly in “automobile/whippie” cases, the defense doctors are typically in the same stable and render the same reports over and over and over. By getting copies of the defense doctor’s other reports with the names of other parties redacted, they can be compared to see whether there is any difference between the reports other than the individual’s name. Often, there is not. Also, demonstrating that the defense counsel has used this doctor hundreds of times in the past decade, and often paid hundreds of thousands of dollars for reports that only change the victim’s name, goes a long way to clearly portraying the doctor for what he or she really is: a paid advocate who owes his or her income to an insurance client.
The Big Question… What is My Case Worth?
There are several important things to consider in order to properly value your claim. Consider:
Physical Injuries – Many soft tissue injuries do not cause the large medical bills that a broken bone or head trauma would. Your medical expenses likely will be limited to:
· A few initial scans until the correct diagnosis is made.
· Some therapy records.
· An occasional follow-up appointment.
· Some medication (often over-the-counter).
- Without large out-of-pocket expenses, defense counsel typically will paint your case as a “low budget” injury that deserves low-budget damages: “Why would an injury that cost $5,000 in medical bills warrant $250,000 in pain and suffering? Give the plaintiff $15,000 – that’s a lot of money for a little injury.”
- If the triggering event was an automobile accident, and if the damage to the car was minor, then the defense attorney will argue that if there was minor damage to the vehicle there cannot be real damage to the occupant. Your medical doctor can assist you in defeating that argument. Many joints and areas of the body are very vulnerable to injury by even a few pounds of pressure. The right force, applied to the right structure, can do significant damage.
Lost Income – Show the jurors how much work time you have missed since the injury, as compared with your pre-injury status. Show how much less over-time is being worked, and how that translates to a dollar-loss in your pocket. Also demonstrate the effect that this lost time may have on the possibility of promotion. This is another real economic loss, and one the jurors can understand.
The soft tissue injury attorneys at The APEX Law Firm have the experience and skill to provide you with the best legal representation possible. We will fight hard to get you the best possible outcome and highest possible payment. Whether you choose to settle or take it to the jury, The APEX Law Firm will walk with you every step of the way.