The trial diary that almost wasn't

Photo: the best picture of vehicle damage in the case. Thank goodness the finger shows us where to look.

I first tried a MIST case (Minor Impact Soft Tissue) fifteen years ago. Glenn Phillips (he of the billboard/tv/bus/cab advertising fame) was the defense lawyer.

I was going to be speaking in the country’s first “How to Hammer Allstate” seminar conceived by my then law partner Pat LePley. So I needed a sample case. One of my existing clients was involved in a zero property damage car strike. I took it on to see what Allstate would do. They hired Glenn, his associate, a biomechanic expert and an orthopedic surgeon who wrote a 35 page report. Our side had a chiro who had never testified before even in deposition. And the husband (a Boeing engineer) to counter the defense biomechanic. Well, we beat the zero offer. And got over a grand in sanctions because Allstate refused to admit fault until the first day of trial. My love affair with MIST cases was born.

SCREEEEAATCHHHHHHHHH! (Old fashioned record comes to a jagged ear splitting halt).

The Stritmatter law firm where I work is one of the most prestigious in the region. We are known for handling huge, giant, big damage cases. And yet… And yet, I still try MIST cases. Proudly.

Here is where the struggle comes in and the reason why this diary was almost not written.

Because “great” trial lawyers win gigantic verdicts. They don’t win more than zero in a MIST case. Right?

Let’s be real and honest.

Look at our Trial News magazines. Look at the books by top lawyers that we read. Do we as a profession trumpet our wins and losses of MIST cases? No. We don’t. Other than the occasional surprising win, we silently bear the lowball settlements, the demoralizing losses.

Many lawyers will hang up the phone if someone calls asking for representation in a MIST case. Even though we know that people are truly injured in low speed collisions all the time. Jurors easily buy into the insurance companies' "no crash no cash" defense. And usually disregard what the injured person and their doctors have to say.

I am part of a law firm. I owe them my fealty. My actions reflect on them. If I take on a MIST case and lose it, I impact the reputation of the firm. Because if great lawyers get great big results. Then by logic poor low/defense results means poor lawyers. Right?

Our braggadocio based trial lawyer culture is eating away at our souls. We don’t take small cases to trial because we worry that we will lose and be seen as losers. We only talk about our wins because we can build up our reputations and get more and better cases. Our fear of being branded as a member of the trial lawyer caste that handles small cases, has made it easy for the insurance industry to offer peanuts to those who deserve so much more.

There is another factor involved. A bit more selfish. We’re still being real right?

I am a trial lawyer. I want to grow as a trial lawyer. Good big cases settle. About once every three years, an opportunity comes around where I can try a fantastic big case. So what happens in between. Do I go to trial college. Do I read more books.

Heck no.

I try cases. Small, big, supposedly too tough to win - anything I can sink my teeth into. I will try it. Even when it is a case that is like the one starting tomorrow. A case that seems impossible to win. And may well be.

This diary was almost not written, because I worried that my firm should not suffer loss of reputation from my writing about trying an uphill MIST case. The fact that it is being written is a testament to their strength and belief in me. And to the cause of right to jury trial that we stand for.

This entry is derived from an excerpt in my trial diary of Sept. 2012.