Soft Tissue Injury Settlements
There is a fundamental problem with soft tissue injury cases that few plaintiffs’ lawyers will admit: some percentage of soft tissue injury plaintiffs are either completely faking the injury or exaggerating the symptoms. Certainly, exaggeration is a more a nuance issue so this post will just focus on “victims” that are truly faking injuries to gain a settlement.
Whiplash. Car accident. What comes to mind when you hear these three words? Most people – and more important to this conversation, most jurors – conjure up some version of someone in a neck collar pretending to be more hurt than they really are. Clearly, the world view that most jurors have causes them to lean towards the insurance companies and doubt victims with soft tissue injury claims. How do I know this? Jury verdicts.
So just how many plaintiffs are faking soft tissue injuries? With some very notable exceptions, soft tissue injuries cannot be objectively proven or proven false. So the answer is anyone’s guess. Your guess is going to depend in no small measure on your own preconceived view of the honesty level of your neighbors.
I think a relatively small number of clients that I have met with who claimed serious soft tissue injuries were faking their injuries. Moreover, I do not think I have ever tried a soft tissue injury case where the client was not seriously hurt. This assertion obviously sounds like plaintiffs’ lawyers head in the sand fluff. So let me explain why I think these twin assertions are true.
I read something once I never forgot: “If you marry for money, you earn every penny.” Unbelievably true. But its cousin is also true: “If you receive medical treatment to get a larger settlement, you earn every penny.” From a victim’s standpoint, getting a substantial verdict or settlement involves a leap of faith that it will actually happen. Which means to get medical treatment you don't need, you are putting in a great deal of work for an uncertain result. Even if you have ill intent, it is hard to summon up the strength to continue to fake injuries. Most people that would go through the trouble are quitters. Maybe they can do it for a week or two but they will not have the strength to stick with it. If they have that kind of fortitude, they would probably just spend that energy getting a job or getting a better job.
So why then does anyone fake a serious injury? Some people spend more time trying to find creative ways to get around the system when they would do better just expending the same efforts to walk through the front door. We all know someone like this, someone who spends more time trying to find some way around the line that usually takes longer than just getting into line themselves. These are your soft tissue injury fakers.
Because the injuries are subjective and cannot be proven, you cannot know specifically which clients were being honest even in hindsight. But I don't think I have ever tried a case before a jury with someone faking their soft tissue injuries. Why? Because to take a case to trial and believe you will do substantially better than the offer, you have to believe in the client and believe the case is large enough for a jury trial when you file it.