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Five Common Mistakes that Increase Exposure in MIST Claims

Kelsey Taylor | Reptile Theory, Resources, Publications | | View Counts (1003) | Return

Originally Posted in In Transit  |  Volume 22, Issue 2

Since the birth of the Reptile Theory in 2009, plaintiffs and their attorneys have become steadily emboldened to seek higher damages with every new case.  Much like a new world record in the 100-meter dash inspires the next generation of athletes to believe in bigger possibilities, personal-injury plaintiffs are now in an endless game of one-upmanship as they strive to overtake the latest record-breaking verdict. 

And sure enough, these days, reports of personal-injury verdicts in the tens or hundreds of millions of dollars—often against trucking companies—have become commonplace in the national news cycle.  These “nuclear” verdicts tend to get all the press, not only for their dollar amount, but also because the underlying accident typically involves a fatality or other “newsworthy” catastrophic loss.  In practice, of course, these multi-million-dollar verdicts represent only a small percentage of the personal-injury lawsuits filed each year.  The vast majority are cases involving minor-impact collisions with soft-tissue injuries, aka “MIST” claims. 

The Deceptively Dangerous MIST Claim

As we enter the second decade of the Reptile Era, it’s pretty clear that the Reptile Theory isn’t going anywhere.  In fact, it’s growing, mutating, and evolving.  Think: Godzilla. No longer focused solely on trial or catastrophic injuries, Reptile disciples have become savvy at wielding the Reptile Theory in all stages of litigation and in every size of case, both large and small.  When executed “effectively,” Reptile tactics have the power to transform a typical MIST claim into a high-exposure lawsuit. 

The hallmark of any Reptile verdict or settlement is that the dollar amount awarded or paid is disproportionate to the underlying injury, usually by a wide margin.  And because most MIST cases are settled prior to trial, you’ll never hear about them on the news.  Nevertheless, the economic toll they’re taking on the trucking industry is nothing short of newsworthy.

Sure, the big verdicts are scary.  But the MIST claim is the “silent killer,” quietly siphoning billions from motor carriers and their insurance companies in confidential settlement agreements where a barely injured (or non-injured) plaintiff receives undeserved funds.  It’s not uncommon to see $15,000 - $20,000 - $50,000 - $100,000 (or much more) in extra funds paid to avoid trial and control risk.  In tort law, this is called a “windfall.”  In the real world, it’s called extortion.   

Yet the nickel-and-dime nature of this extortion simply doesn’t get enough attention for the Godzilla-sized havoc it’s wreaking across the transportation industry.  Specifically, claims are more difficult to evaluate, reserves are harder to estimate, premiums are increasing unsustainably, insurers are refusing to write or renew trucking policies, and our clients are paying the price with their bottom line. 

Common MIST Mistakes

In the past, the dominant approach to defending a MIST claim was pretty simple: ignore it until it goes away.  Plaintiff files suit. Defendant digs a trench and responds to the procedural “artillery fire” as it comes in. Answer some discovery, lodge some objections, take a few depositions, give plaintiff the runaround to avoid producing anything substantive, and get a few continuances granted. Sure, you might lob a few grenades over to the plaintiff’s side, but just like trench warfare, no one makes much progress. After all, the plaintiff’s attorney won’t get paid till the end, so why not starve them out?  The idea was that, by ignoring them as long as possible, eventually they’d lose interest in such a small case and go after the bigger fish in their docket.  After growing impatient with the process, the plaintiff would then settle for some trifling amount just to be done with it.   Albeit a reactionary approach, it worked pretty well…for a little while.

The Reptile Theory changed all that. 

Now, over a decade later, if you sit and wait for the “procedure” of litigation to carry you to the finish line, you’re not only behind the ball, your client is a prime target for a Reptile settlement or verdict.  Here are the top 5 mistakes defendants and their attorneys make when defending MIST claims.

1. Not being proactive.  

As it turns out, plaintiffs and their attorneys really hate being ignored.  So they decided to strike at the exposed Achilles heel of the defense industry:  the hourly billing model.  Today, even on the smallest cases, plaintiffs are bursting out of the gate, sending extensive discovery, filing motions, and going to battle with newfound zeal.  This even includes a new breed of gamesmanship, such as picking small fights, engaging in evasive discovery, and constantly tattling to the judge with frivolous motions—all of which create additional busywork for defense lawyers.    

Naturally, the legal bills began mounting as defense attorneys got buried under a mountain of paperwork, and the old “trench warfare” approach became unsustainable and ineffective.  All of a sudden, these “minor” cases started becoming majorly expensive for companies to defend.  Post-Reptile, clients must consider the “stop the bleeding” factor in deciding whether to pay a premium settlement to an undeserving plaintiff.  In other words, our own attorney fees are the first rung in the Reptile extortion ladder.

2. Still believing the lawsuit is just about the accident.

The Reptile Theory gave plaintiff attorneys license to go big—to transform a simple auto accident into a moralistic crusade for justice.   And what’s a crusade without a good witch hunt?  An effective Reptile trial draws the jury’s attention away from the accident and shifts the focus to the entire company.  Any evidence suggesting that the company is systemically unsafe, or that it habitually prioritizes profits over safety, will support the Reptile’ story, regardless of whether that evidence is related to the actual accident. 

As most of us have experienced, Reptile discovery goes far beyond the “fishing expedition,” more closely resembling, say, a full-body cavity check.  What’s worse, judges are allowing it, especially when the attorney is unprepared to defend large-scale discovery in a small-scale case.  Under the liberal discovery rules of most jurisdictions, evidence is discoverable with minimal relevance requirements. Once the discovery floodgates open, no matter how safe a company is, the Reptile can make a mountain out of any molehill.

Attorneys who rest on their legal laurels and think “Oh, the judge is never going to let that in,” or “My driver has no liability for this accident,” or “We’ll get ‘em on contributory negligence,” are in for a rude wake-up call.  By failing to defend the entire company’s safety record from the outset, your client is primed for an expensive discovery battle, costly settlement, or nuclear verdict.

3. Not taking small claims seriously from the beginning.

When companies fail to treat MIST claims seriously from the outset, several new problems are created that cost more money in the long run to fix. 

Claimants get mad.  Remember, no one likes being ignored. Think of it like a child seeking attention.  Ignore them long enough and they’ll start pestering you, then get louder, then stomp their feet, then kick your shins, and so on.   When claimants feel disrespected and unheard, they start “acting out” in damaging ways.  It’s become personal.  Once that happens, the defendant has missed its best opportunity for early resolution.  After that, the claimant’s resolve strengthens, he digs in his heels, and now he’s out for blood.

The case gets referred out.  For starters, in some MIST claims, the claimant’s first attorney is a referring attorney—perhaps a family friend, or someone who doesn’t really practice personal-injury law or otherwise typically refers out PI cases. Although they might write one or two letters on the claimant’s behalf, possibly even file suit, they’re going to hand off the case to a “real” plaintiff’s attorney as soon as the going gets tough.  While the tone of their initial correspondence might suggest otherwise, these attorneys are often open to an early settlement to avoid having to refer the case to someone else and giving away the lion’s share of their fee.  When defendants dig their “trench” before at least trying to make a connection with the initial attorney, they miss key opportunity to resolve the case with diplomacy before the conflict escalates. 

Damages increase. After the case is referred, the new hired gun is going to need a bigger case—with bigger damages—to justify splitting the fee with the referring attorney.  No problem though.  These days, complex networks of doctors, chiropractors, pain management specialists, and imaging professionals are ready and waiting to provide a sea of bogus records and unnecessary treatment to prove up plaintiff’s medical damages.  Still think the case is “small” after the plaintiff’s $350,000 “back surgery”?  The jury won’t. 

Data and documents get lost.  Finally, when a minor accident happens, it simply doesn’t raise all the red flags that appear obvious in a large case.  When a catastrophic loss occurs, everyone understands that a massive document collection and preservation effort must begin.  Attorneys and adjusters are even on the scene gathering information and beginning the complex risk assessment process.  Yet these same efforts are rarely undertaken for small claims with the same care and thoroughness, and it is not uncommon to find that records are incomplete or otherwise disposed of through routine procedures.  However innocent or accidental this may be, the loss of documents can be a powerful weapon in the Reptile’s arsenal.

4. Not getting an attorney involved in the pre-litigation process. 

Although attorneys are retained early in the “big” cases, when it comes to MIST claims, cases are usually not assigned to outside counsel until after a lawsuit has been filed.  Unfortunately, this often means that all of the issues raised in #3, above, may have already occurred by the time an attorney sees the file for the first time.  In other words, the plaintiff is already mad, the case has already been referred out, some medical syndicate is already working up plaintiff’s “damages,” and documents have not been effectively preserved. 

That’s like parachuting into a gun fight.

To compound matters, many insurance companies and self-insureds assign MIST claims to the newest and least knowledgeable adjusters who, simply from inexperience, may lack the skills necessary to create a strategic plan for early resolution, identify opportunities for connection, or negotiate effectively with the claimant or his counsel.  As a result, many plaintiffs feel like they won’t be heard or taken seriously until they file a lawsuit.  So although some legal expenses may be saved on the front end, without early attorney involvement, many MIST claims can become unnecessarily costly on the back end.

5. Engaging in hostility, passive-aggressiveness, or gamesmanship. 

On the other hand, what good is attorney involvement if it creates more problems than it solves?  When attorneys are hired during the pre-litigation phase, the focus should be about diplomatic resolution, not defensive posturing. Although every attorney will have a different take on how to achieve this directive, hostility and aggression are losers in any form.  When an attorney engages in saber-rattling or any other show of force, the plaintiff’s side becomes further entrenched in its position and less inclined toward early resolution. 

Passive hostility is probably even worse.  Remarkably, many attorneys still believe that sending disrespectful, insulting, or passive-aggressive emails will somehow convince the plaintiff and his attorney that his MIST claim is meritless and not worth pursuing.  This never works.  When we avoid face-to-face interactions or take cheap shots in our correspondence and motions, we not only lose credibility, we also lose critical opportunities to form connections with plaintiff and opposing counsel that could have been leveraged for the client’s benefit.   

And on that note, don’t play games.  Even if the plaintiff’s attorney is doing it.  It might feel good to “teach them a lesson” or “beat them at their own game,” but in the long run, it’s counterproductive and makes judges mad.  If you play games, you can be certain that the opposing party will play games, too, not only costing your client money in the form of protracted discovery battles, but restricting access to vital information you will need to properly evaluate and resolve the case. 

Help the Reptile Help You

To keep the Reptile away from your MIST claim, first ask yourself what it really wants.  Money is the easy answer, but it’s actually not the most important consideration.  In fact, there are three underlying needs that determine whether the Reptile, or just a regular plaintiff’s attorney, will show up in your next MIST claim:

  1. Respect – Because he’s become jaded by a lack of respect in the legal profession.
  2. To feel like the hero or “good guy” – Because sometimes he wonders.
  3. To make a difference – Because that’s what we’re all trying to do. 

When you craft a litigation strategy that helps the plaintiff’s attorney meet these essential needs, you greatly increase your chances of avoiding Reptile wrath.  (Bonus Tip: This works in any size case.)

Although not all MIST claims are good candidates for early settlement, when this is the goal, here are a few tips that will help you resolving the case more quickly and at a lower cost—both in settlement value and attorney fees—than the outdated “trench warfare” method.   

  • Make connection early. Take the time to meet with opposing counsel face-to-face to discuss the primary issues in the case (liability and damages).  When an attorney or experienced adjuster makes a connection with opposing counsel early in the lawsuit, or better yet, early in the claim process, this signals that the company is treating the claim seriously.   This avoids the typical fear and frustration that can arise early on when the plaintiff feels ignored.  
  • Be respectful and don’t play games.  In this initial meeting, and throughout litigation, show respect at all times.  If you say you’re going to do something, do it.  The Reptile’s typical desire for scorched earth tends to shrink when he feels respected and starts believing he can trust your word.  
  • Commit to “collision,” not conflict.  In any lawsuit or contested claim, there will obviously be points of disagreement—otherwise you’d have already paid the demand.  Stay in good communication with opposing counsel, emphasizing the mutual goal of segregating the big issues from the irrelevant ones.  If you maintain a respectful and collegial attitude throughout, you can “collide” over contested issues without becoming “combative.”  
  • Assert some moral authority. Remember, you both have a mutual purpose: to assess the claim as quickly as possible and, if warranted, get his client paid quickly so he can get on with his life.  Opposing counsel already knows that it’s usually not in his client’s best interest to wait several years for a jury verdict to get funded.  By handling this conversation in a confident yet respectful manner, you can help plaintiff’s attorney feel like the “good guy” and do the right thing by cooperating to get the case resolved.
  • Get documents exchanged ASAP. Once you’ve established your mutual purpose, and agreed to disagree only over the truly contested issues, offer to immediately exchange all documents absolutely necessary for each side to evaluate liability and damages. No need to wait on formal discovery or a scheduling order. Not only will this signal that you’re treating the claim seriously, it may curb the extensive medical workup that might have otherwise arisen if the case had been allowed to linger for months, and, even more importantly, could help reduce the fishing expedition for mountains of irrelevant information later. 

By avoiding common defense mistakes and incorporating proactive tactics early in the claims and litigation process, defendants finally have a real opportunity to control risk, reduce costs, and plug the MIST-claim “leak” that has been draining the transportation and insurance industries since the Reptile Era began. Otherwise, these MIST opportunities become simply—missed opportunities.

Kelsey M. Taylor and Paul W. Murphy are the co-owners of Murphy Legal, a Texas-based commercial trucking defense firm. Murphy Legal handles claims throughout the State of Texas for wrongful death, catastrophic collisions, personal injury, premise liability, and business disputes, and advises clients on regulatory compliance and safety matters. Kelsey is a member of the DRI Trucking Law Committee and vice chair of the Lapsed Membership Subcommittee. She is also a member of the Transportation Lawyers Association (TLA) and actively involved with the Texas Trucking Association (TXTA). Paul is certified in Personal Injury Trial Law by the Texas Board of Legal Specialization and webpage chair of the DRI Trucking Law Committee. In addition to DRI, Paul is a member of the Trucking Industry Defense Association (TIDA), TLA, TXTA, and the American Board of Trial Advocates (ABOTA).