Table of Contents Late Fall 2007  •  Volume 3, Number 2

Tips On Handling a Minimum Impact, Soft Tissue (MIST) Case

By Jonathan G. Stein

Before I can give you the tips, I should probably explain what a MIST case is and why you should care. A MIST case (also called a LIST case) is a Minimum Impact, Soft Tissue case. In other words, the vehicles have less than $1,000 in damage and the injuries are whiplash type injuries. There are a variety of technical definitions that may differ slightly, but this definition is a good working definition. As to why you should care, the simple reason is that this niche practice area can help you either expand your practice or provide work for associates who need training in litigation.

However, handling MIST cases is different than handling any other type of auto case. MIST cases are hard fought cases that require study of medicine, biomechanics and the law. And the payoff is not going to be a million dollar settlement that brings fame and fortune, but rather enough money to keep the lights on – if you can settle one per month.

For those of you who are not scared off, here are ten tips on handling MIST cases:

10. Read the literature. If someone is involved in an accident and breaks an arm, almost any attorney could settle the case. You obtain the medical bills, determine the wage loss and make a demand. Especially with a clear liability case, it is usually not rocket science. However, with a MIST case, the insurance companies have a ton of arguments that they use. These arguments range from the simple “We do not think he was hurt” to the complex “The force of the impact was 1.1 g’s and the biomechanical analysis revealed that the force was not sufficient to cause the type of injury claimed.” You need to know how to respond to these arguments. The only way to learn, besides experience, is to read the literature and learn the arguments.

9. Talk to the potential client. While talking to the client is always important, the single most important factor in a MIST case is the client. A poorly presenting client with a good claim will have very little, if any, value. A great client with not a lot of special damages will have an excellent claim with a lot of value. The differences in the client are small, a conviction here, or a better command of the language or even outward appearances. But, you will only learn these from a long talk with the client – not about the case, but about the client!

8. Learn to use the internet. The internet is your friend. This is even more true in a MIST case. You can use the internet to check on the defendant’s assets, check on your client, obtain asset information, even get insurance information on the defendant. Myspace, Google, Friendster and the like are a wealth of information. Get an account and learn how to use them.

7. Take a look at the cars. Do not rely on the insurance company’s estimate of damages. Some estimates are low because of “hidden damage,” i.e. damage that cannot be seen without the car being torn down. Some estimates are low because the car is an obvious total loss and the insurance company stops writing the estimate because it is clear that the car will be a total loss. Some estimates are low because no one asked the client what damage there was and just wrote an estimate for the rear bumper. Make sure you inspect the vehicle with the client. Then, make sure the client gets an independent estimate from a body shop, which should be free.

6. Get to know the treating doctor. Your treating doctor is your second most important witness behind your client. Get to know the treating doctor. Take her to lunch and talk to her. Look her up on the internet (see 8 above) and with your state licensing department. While the case is proceeding, take a few minutes to check the doctor quarterly in case there are updates. If the doctor has problems, your case will have problems.

5. Set reasonable expectations. Tell the client from the beginning that this is not a “lottery” type case. In other words, the client will not be winning the lottery and will not be getting enough money to retire. When the client expectations are reasonable, you will have an easier time settling the case.

4. Get your discovery done timely. Discovery is usually not fun. Well, some attorneys really enjoy it. But, in the end, most people do not like creating discovery or responding to discovery. But a MIST case should go quickly. The faster you get it done, the better your return on your investment. Send out your discovery as soon as possible and make sure you respond to opposing counsel’s discovery within 10 days. That will keep your case moving quickly and avoid wasting time. One trick: have your client answer mock discovery questions early in the case so when you get the real discovery in, you can answer it quickly.

3. Don’t waste money. These are not huge moneymakers. (See 5 above) Therefore, you must use your money wisely. In a rear end case, do not take the defendant’s deposition. It will not help you. Similarly, do not spend time and money on investigators if you can obtain the same information in a less expensive manner such as written questions to a witness.

2. Be aggressive but fair. MIST cases require some aggressiveness to settle. Despite popular misconceptions, insurance companies do not “roll over” on smaller cases. You must be aggressive, but be fair, especially to defense counsel. Do not bury your opponent in paperwork or set unreasonable deadlines. But do push the case towards resolution.

1. Try the cases. The key to running a successful MIST practice is to try cases. You must show the insurance companies you will try the cases. If you work them up and settle them, case values will decrease and you will never be able to handle these cases successfully.

MIST cases can be a productive, profitable part of your firm. However, you need to make sure that you are prepared to enter this new area and enter it fully. You cannot dabble in MIST cases and be successful. These 10 tips will give you a start.

California lawyer Jonathan Stein is the founder and principal of the Law Offices of Jonathan G. Stein. He earned his JD with Distinction from UOP-McGeorge School of Law. He is the author of Litigating MIST Cases and can be reached through his website, www.jonathangstein.com.

Copyright 2007

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