The Battle Is for Causation! How Attorneys Get Away with Improperly Interjecting Character Evidence

Case by case, trial by trial, at Anderson, Hemmat, we strive to take back ground that insurance defense lawyers have gained over the past several decades. This task is often challenging. Big money insurance companies pour millions into their propaganda machine to convince the public that all lawsuits are frivolous. Even major news organizations like Fox News contribute to this way of thinking. Also, insurance companies hire very skilled attorneys to fight their battles. As an example, this last year, our firm has had five jury trials. In each instance, we were successful in communicating our message to the jury and our clients prevailed. But when reviewing statewide jury verdicts for this last year, it is readily apparent that insurance companies overall have still achieved a high level of success in trials. The overall success of insurance companies shows us that there is still a great deal of work to be done here in Colorado.

Taking back the courtroom for injured victims is a slow process that improves one trial at a time. Clearly, we cannot win every trial, but with each success, we feel that our efforts help force insurance companies to work harder to settle cases for just and fair levels of compensation. Unfortunately, for the time being, insurance companies are less interested in fairness. Instead, insurance attorneys devote the majority of their attention to what we call a causation attack.

History:
The legal significance of the word "causation" is taught in torts class in the first year of law school. The professor often uses a VIN diagram with overlapping circles with shaded areas demonstrating where the circles overlap. Law students are taught that a civil claim for injury requires the proving of three things: 1) wrongful, improper conduct (negligence); 2) injuries (damages); and 3) cause and effect between the wrongful conduct and the damages. It is this third area which lawyers refer to as "causation." In law school, these three elements intersect very neatly on a VIN diagram. But in reality, at trial, the causation of a plaintiff's injuries is much more fuzzy and requires a competent injury attorney's extreme focus.

Most clients think that the battle in their case will be about who is at fault for causing the accident, but this is rarely a good basis for an insurance company to resist paying a claim. After all, if the case is strong, it is usually clear that the defendant is at-fault for causing the motor vehicle collision. Also, it may be surprising to outsiders to learn that insurance companies do not often argue that a plaintiff has no injury whatsoever. Insurance lawyers only make that argument if they believe the plaintiff is a total fraud. Frankly, we try to choose our clients carefully so we rarely hear that argument. In most cases, insurance companies find that juries are most receptive to arguments about the causation of a plaintiff's injuries. Causation arguments are so successful for the insurance industry that they rarely have to focus on anything else.

You may ask "if there is no dispute that the defendant is at-fault for the car accident and there is no dispute that the plaintiff has injuries, isn't it game over for the insurance company?" No, that is not the end of the battle because the plaintiff must prove that the defendant's wrongful conduct actually caused the plaintiff's injuries. For instance, the insurance company may argue that the plaintiff is truly injured but the reason for the injury is from something else that happened to the plaintiff BEFORE the car crash. Insurance lawyers call this a preexisting injury. Also, insurance lawyers can argue that the plaintiff's very legitimate injuries were actually caused by something that occurred AFTER the car crash. Finally, an insurance lawyer can argue that there is a "non-organic" reason for the plaintiff's injury. Often, this argument takes the form of arguing that a plaintiff has depression or some other unrelated mental condition that contributes to plaintiff's perception of his or her injury.

The insurance industry has found that the causation of plaintiff's injuries is fertile ground for convincing a jury to award plaintiff very little or even nothing. After all, why question the manner in which the car crash occurred or question whether the victim really feels pain? It is easier to convince a jury that the pain and injury may be very real, but not caused by the car crash. Therefore, insurance companies argue that they should not be held responsible for the injury. The problem is that this type of argument is very convincing to juries and has statistically given insurance companies much greater success than any other approach to defending injury lawsuits.

The Problem:
Insurance companies use the causation arguments as a springboard to question a plaintiff's truthfulness, worthiness as a person, and even mental health history. Insurance companies use causation arguments as a pretextual reason to get judges to admit things into evidence that would otherwise be inadmissible. The insurance lawyer will tell the judge that they need to explore critical areas of a plaintiff's past psychological history in order to show the jury that the defendant's negligence did not cause the plaintiff's injuries. Based on their legal training, judges are predisposed to agree with these paper thin arguments.

All of a sudden, one of the central issues of the case can become some part of the plaintiff's prior health history which is not even remotely connected to the injuries the plaintiff is claiming from the car crash. This can often turn the trial into a witch hunt. Whether a client is worthy of receiving money is never supposed to be a basis for awarding or not awarding an injured person monetary recovery. Because insurance lawyers argue that practically everything else in a plaintiff's life is the true cause of an injury, judges often get fooled into allowing introduction of otherwise irrelevant evidence.

As a result, injury victims are seeing devastatingly reduced verdicts. In essence, anything and everything becomes the pretextural reason for a plaintiff's injuries. In reality, the insurance company attorney is trying to focus the jury on other things, such as the plaintiff's truthfulness and worth as a person to avoid the focus being on what the trial should be about. Much of this would not be admissible but for the fact that the insurance company argues that these things bear on what they argue is the "true cause" of plaintiff's injuries.

The trustworthiness of the client masquerading as causation:
Recently, my client was questioned by the insurance company lawyer as to whether her statements in the emergency room were truthful. The emergency room personnel had asked my client what she remembered about the gash on her forehead. While dazed, my client told the emergency room doctor that she thought she struck the side window during the car crash and that her head must have shattered the window. Again, dazed from the head injury, she made this assumption because of the gash on her head and the glass that was all over her after collision.

During the trial, defense counsel produced a photo of the car with the driver's side window still intact. However, the driver's side passenger window was indeed shattered. Defense counsel was able to introduce these facts to the jury to show that while the window behind the driver's seat was smashed, the driver's side-window was intact. Clearly, this unsuccessful effort by the insurance attorney was an effort to show that my client was being deceptive in the emergency room. The truth is that my client simply did not know exactly how her body moved during the actual collision. This type of trumped up credibility issue would usually not be admissible, but because her credibility was intertwined with the cause of her injury (whether the gash was related to striking her head on the driver's window or not), the judge saw no problem allowing defense counsel to manufacture a credibility issue in an effort to influence the jury.

A plaintiff's worthiness as a person masquerading as causation:
There is no rule of evidence that permits an insurance company lawyer to suggest that an injury victim simply is not worthy of being awarded money. In fact, Evidence Rule 404(b) specifically limits introduction of character evidence. But, when an insurance company lawyer argues that a person's character affects the cause of plaintiff's injuries, the judge suddenly sees no problem introducing the evidence.

Defense lawyers have sometimes introduced completely inadmissible evidence including a plaintiff's reputation for violence, a plaintiff's promiscuity, the young age at which a plaintiff had her first child, a plaintiff's history of unrelated disability, a plaintiff's history as a gambler, a plaintiff's unwillingness to report income to the IRS, all under the guise that these issues somehow affect the actual cause of my client's injuries. In truth, the defense lawyer in all these examples simply wanted the jury to hear something that might put plaintiff in a bad light.

Mental health masquerading as causation:
In theory, defense lawyers are precluded from introducing a plaintiff's prior mental health history. Well-settled Colorado cases such as Johnson v. Trujillo, stand for such a proposition.

Nevertheless, defense lawyers get creative and argue that my client's prior mental health issues are the real cause of the injuries. For instance, the insurance company will argue that the victim's injuries are simply "in their head" and that plaintiff may be consciously or subconsciously manufacturing an injury. All of a sudden, judges have no problem allowing introduction of evidence of plaintiff's prior bereavement counseling or prior drug rehabilitation counseling from decades ago.

There is one particular "hired gun" insurance doctor that always uses the same approach. He thoroughly reviews all of my client's past prior medical history. For example, let's say that my client is claiming that she has a back injury from the car accident. This particular doctor may see that the victim has no prior history of back injury. One would assume that the cause of the back injury would clearly be the car crash. Case closed, right? Of course, this insurance doctor is not about to admit that.

At that point, this particular doctor will circle–the–wagons and focus on the fact that the victim had unrelated preexisting shoulder pain prior to the car accident. He then, without a shred of medical evidence, will conclude that the shoulder pain complaints years ago were out of proportion with the objective findings in the medical records. In essence, he claims that a victim's shoulder injury simply was not as bad as she reported back then. Then he cultivates a diagnosis that the victim subconsciously exaggerates pain and has a "pain syndrome."

He then makes the logical leap that this pain syndrome (which he just diagnosed) causes the plaintiff to magnify pain complaints. He then reaches his most monumental leap of logic by asserting plaintiff is magnifying the amount of back pain that she has suffered from this car accident due to this now diagnosed preexisting pain syndrome. His approach is so medically unfounded and based on flawed logic and intentional deception that not only should it be excluded from a jury ever hearing it, but this doctor should have his medical license taken away and should be put in jail.

Often this doctor confuses juries enough to help the insurance companies achieve low verdicts.

CONCLUSION:
The only way insurance company attorneys get good people on a jury to side with villainous insurance companies is for them to bend the rules and mislead the jury. Judges, however, need to see the defense lawyer's sneakiness for what it is. At Anderson Hemmat, we believe that judges should limit defense lawyers to only making fair and relevant arguments instead of funneling anything and everything through the "causation" of a plaintiff's injuries. If you have been injured in an auto collision, please call us today for a free consultation.