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Not a 'minor' accident: your client's injury is real. Don't let the defense turn evidence of minor property damage against you.

Article Excerpt
Marcus Tullius Cicero said, "When you have no basis for an argument, abuse the plaintiff." This strategy, conceived long before anyone heard of "lawsuit abuse," is the hallmark of the defense in auto cases involving low-speed collisions with minor property damage.

Too often, plaintiff counsel walk into a courtroom with a seemingly great case--one with a credible client and solid medical evidence--only to get a harsh lesson: Jurors have no empathy for victims of a crash with minor property damage. Once they find out the car wasn't badly damaged, jurors stop listening.

At the outset of your case, you need to understand the minor-property-damage defense for what it is: a charge that the plaintiff and his or her health care providers are not telling the truth. It is not just a subtle suggestion that the plaintiff may be asking for too much; it is an outright accusation that there was no injury.

Those looking for a magic cure-all for what ails minor-damage claims are not going to find it here. These cases are difficult to try and even harder to win. There are, however, four tactics that can help: Seek to exclude property-damage evidence and arguments; rebut the inference that clients are lying by bolstering their credibility; debunk the "common sense" assumption--that it is just common sense that if a person's car isn't damaged in a collision, the person can't have suffered injury--with expert testimony; and argue the obvious.

Exclude evidence

Seek a motion in limine to prevent the jury from learning about the property damage--from arguments, photos, or estimates. To be admissible, evidence must be both probative and not unduly prejudicial. (1) Some states bar admission of property-damage evidence in personal injury cases if there is no expert testimony explaining the correlation between the damage and the injury. (2) Others give the trial judge discretion to decide whether to admit the evidence. (3) Given the potentially devastating impact of such evidence, make a forceful argument and hope the trial court will decide in your favor.

Several theories support the exclusion of minor-property-damage arguments and evidence. For example, the existence of property damage does not mean that injury has occurred, just as the absence...

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