Show the Story - Using Illustrations in your Demand Letters
Tips from Settlement Intelligence co-owner and Trial Guides Founder Dr. Aaron DeShaw, Esq.
Before I get started it makes sense to address the two most important questions; 1. Who is this author; and 2. Why should I consider what they are writing about using illustrations in pre-litigation settlement demand letters?
You may already know the products of my work. Before we get to that point though, a little background. I come from a family of doctors and so before I became a lawyer, I went through the 4000+ hour Doctorate of Chiropractic program, graduating in 1993 and passing a board examination with a 5% pass rate (the lowest in state history due to the difficulty of the test). Few lawyers realize the DC program has approximately five times the number of classroom hours of instructions as an ABA approved law school. In all 12 quarters of that Doctorate program I had a course in reading medical imaging, with other courses in taking radiographs and x-ray physics. Depending upon the comparison studies you read, Doctors of Chiropractic have up to 13x as much radiology education as doctors with an MD degree (not including the radiologists). In the course of my practice in the United States and Europe over the next seven years, I took and read approximately 1000 sets of radiographs. Additionally, I reviewed patient MRIs and CTs (subsequent to the radiologist) to discuss findings with my patients. I retired as a doctor when I graduated law school and passed the bar in 2000.
Shortly after starting practice as a lawyer I received a call about a program being used in the auto insurance field called Colossus. Despite the program being very secret at the time, I discovered that the Colossus program is a computer software system that set the bodily injury settlement values for most of the insurers in the United States. Over the next three years I researched Colossus, wrote two books (one of approximately 450 pages for doctors, one of approximately 520 pages for lawyers), created specialty forms to collect data from clients necessary to properly document injury claims assessed by claims software, and then created a demand letter format based upon insurance claims software.
The purpose of my demand letter format is to provide all information of value to the computer system in the order that the insurance software will require the information from the adjustor. That format has been used by the legal consulting company Auto Claim Experts and is now the basis for the Settlement Intelligence program. As the only author of a text on Colossus and the competing programs (now Liability Navigator and ClaimIQ), the work from my book and subsequent lectures has been used by thousands of personal injury lawyers in their cases, and I continue to teach about optimizing settlement offers through this demand letter format.
My two books became the starting point for the reason you may already know of my work. They were the first published by a company now known as Trial Guides. I’ve continued running Trial Guides for the past 18+ years (while concurrently practicing law), publishing most of the important books for the plaintiff bar; Rules of the Road, Polarizing the Case, David Ball on Damages 3, From Good Hands to Boxing Gloves, Don’t Eat the Bruises, Running with the Bulls, and many more. For several years Trial Guides also published the AAJ Press books. I was also a consultant to David Ball on the other influential book we didn’t publish; Reptile: The 2009 Manual of the Plaintiff’s Revolution, one of few people that read the early manuscript before Don Keenan self-published the book.
In research as the head of Trial Guides, I’ve come to some important conclusions about the practice of law, which I will try to share in the upcoming blog posts on the Settlement Intelligence web page. For this article I’ll share a statistic that I will address in more detail in a future article – According to the US Department of Justice Bureau of Statistics, approximately 98% of tort cases settle before the case is filed for litigation. Tort claim filings have fallen 80% since the early-1990s. Of the 2% of cases filed, approximately 98% of them are settled prior to trial. So, there are very few lawyers going to trial. For this reason, I’d like this first article to address the role of illustrations and animation where it counts most for most clients and most lawyers; pre-litigation settlement.
Given my history at Trial Guides, publishing for many of the Inner Circle of Advocate members, and other lawyers considered the highest in quality and outcomes in their states, I strongly believe that understanding the “medicine” of your cases really well is perhaps the most important skill you can have as a personal injury lawyer. I need not go into that issue as it pertains the advantages in trial yet, but we do need to address how it impacts settlement.
If you don’t understand your client’s injuries, you will get a fraction of the correct value on your cases. Let’s bypass for now the field of medical malpractice in which, without strong medical knowledge, you have no chance. But, even in auto cases, workers compensation, product liability, premises liability and many other fields leading to personal injury, you are at a distinct disadvantage unless you have a deep understanding of anatomy and injuries. This is why I've provided a series of lectures for lawyers and paralegals on anatomy, an overview of injuries, a six part series on spinal anatomy and spinal injuries, and additional education on traumatic brain injuries and TBI demand letters. Understanding these injuries is the difference between incorrectly believing your client has a soft tissue spinal injury, and knowing their symptoms indicate a traumatic brain injury, an inner ear injury, or an instability in the spine that will result in permanent impairment. If you haven’t spent enough time to really understand these issues, I strongly encourage you to do so.
So, now to imaging, illustrations and their use in the demand letter and settlement negotiations. Every “fact finder” learns in a distinct way. By nature, many lawyers believe that words are the most important factor in persuasion regardless of whether those words are on paper in a demand letter to the adjustor, an argument before a judge, or when we are talking to a jury. The problem with that assumption is that approximately 65% of the population is visual learners. (30% are auditory learners and 5% are kinesthetic learners.) So, what happens when we send an adjustor who is a visual learner a demand letter that has pages of medical record text summaries with no pictures or illustrations of the injury? You get a compromised offer. In terms of a traditional claims analysis (where the adjustor actually considers value outside of the computer evaluation, which is rare) if they don’t see the injury or know that you can visually demonstrate to the jury that the injury is objectively verifiable, they won’t provide as much value for that case. In terms of computerized claim analysis (which is used to determine the settlement offer in almost 100% of some types of personal injury claims) the problem is that if the injury isn’t visible by the eye (via photograph or the adjustor personally seeing the client’s injuries) or visible by medical imaging, the injuries are deemed “non-demonstrable” and are valued substantially lower.
Here are some ways you can use visuals in your demand package submission to the insurer:
In a relatively straightforward liability event you may be able to simply put a picture in the demand letter itself. I tend to put these in the demand letter body (preferably with one on the first page of the demand letter), as well as provide a full size picture behind the demand letter. Or, if you are submitting all supporting documents electronically, submit a folder of photographs with liability pictures within that electronic folder. If you are using the Settlement Intelligence software, place the picture within the body of the Word document generated by the program.
Liability is not always so clear, and graphics companies like High Impact have been critical to many cases where the defense fights liability in medical malpractice, trucking, auto, product defect and other cases. I've worked with the company for many years because I admire the quality of their product which I find to be medically accurate and authentic looking rather than cartoonish.
If it is a cerebral palsy case, what did the fetal monitoring strips demonstrate? They can show it in a compelling way as compared to normals. In a dram shop case, I’ve seen High Impact do incredible illustrations or animations demonstrating the increase in alcohol over time, leading to clear signs of visible intoxication at the bars where the driver was served. In trucking cases, I’ve seen High Impact do illustrations, animations and virtual reality presentations showing how the truck crash occurred. They’ve covered everything from defective product design to fraudulent security cases to natural gas explosions. Since my catastrophic injury practice is widely varied, having a way to graphically represent the liability event in pre-litigation settlement attempts as well as in trial helps me better represent the loss of my seriously injured clients.
Credibility is critically important throughout the claim process, and especially in trial. The important thing for me is that the graphic work I receive and communicate is not fabricated to support my claim, or look more dramatic to get an effect. Trying to use something like that discredits you, your client and leaves you subject to having a judge strike the graphic in trial. The graphic work from a graphics vendor must demonstrate the reality of the situation by relying upon imaging, records, a scan of the scene, blueprints of the defective device, physics or whatever the determining factor is in your case. After a preliminary workup, the graphics company you use should rely upon your expert’s feedback to ensure that the graphic is consistent with the expert’s determination based on the facts.
Many adjustors believe they can win on liability. I believe it is important to dissuade them from that position immediately in the pre-litigation demand letter. If you have a photo or illustration that will be helpful, put it right in the demand letter itself. If you have an animation, include the file in your demand package submission (if sent by physical media), but also provide a link within the demand letter to a copy in a Dropbox file. (There is a reason for this being verified in writing in the event you end up in an insurance bad faith claim later.) If you have better technical skills, submit the demand as a PDF file with an embedded video of the animation.
In some cases, insurers are pushing for minimum comparative negligence allocations across all cases. This is particularly true of State Farm and GEICO auto claims. In recent years comparative negligence has become an increased focus of the claims software programs. The promise of the software vendors is that insurers can increase their assessment of comparative negligence in a higher percentage of cases, resulting in millions of dollars in reduced payments on bodily injury claims. So, it is important to demonstrate your client had no negligence in creating the outcome if that is credible based upon your investigation.
As someone who is both a doctor and personal injury lawyer, I have found it fascinating the creative ideas that graphics vendors have developed over the years to address the issue of causation. While I can look at imaging and clearly see the problem, objectively I realize that without radiological training the adjustors and jurors are not able to see the injury in the same way. So, I need an illustration to more clearly demonstrate the loss. To ensure the viewer realizes that the illustration is based on the imaging itself, graphics companies often use a mix of the imaging files and an illustration or animation. While the picture in this article represents a rare and catastrophic injury, it exemplifies this principle - the extent of the serious damage to this client are not sufficiently obvious from medical imaging alone. The illustration by High Impact helped the adjustor better understand how serious the injury was and what a jury would see if we went to trial.
With medical imaging going digital, radiology facilities can view your clients imaging in a variety of ways that can be very helpful to the litigation case, and as a result the settlement offer. Unfortunately, most of the time radiology facilities do not even provide some basics like a screenshot of a positive findings. Thankfully, these facilities are usually happy to provide DICOM files to your office that contain all of the imaging. Your medical expert and / or expert radiologist can review these. The data in the DICOM file can be loaded into a computer and both 2D and 3D images of your client’s imaging can be viewed. Using medical imaging software, a doctor can zoom in, and rotate to find the best angle to demonstrate the injury. They can also do “fly through” of the anatomy, where a radiologist or medical graphics specialist can walk you through the brain, or through a blood vessel to demonstrate what happened that caused your client’s injury.
While I have clear advantage as a doctor with substantial radiology education and career experience, I also have realized I have the disadvantage of assuming that an adjustor or juror can see the injuries just like I can. So while in catastrophic injury cases I might be able to see fractures all over my client’s body, I can’t assume that an adjustor will understand the extent of them with screen shots of the imaging. In those cases I regularly turn to graphics vendors to do illustrations of the injuries before surgery, the surgical procedures and the post-surgical hardware placement. I place these images within the demand letter in the sections where I discuss these injuries in a narrative style (which I suggest in addition to the Settlement Intelligence formatted demand letter for specific types of injuries.) The illustrations are undeniable for the adjustor, their supervisor, and all the way up to home office. If the case doesn’t settle for policy limits, then I have the exhibits ready for trial. My primary area of practice is traumatic brain injuries and so when there is positive imaging, using an illustration can also made a notable difference. One of the nice things about a medical illustrator on this issue, is helping the adjustor understand where the CT or MRI “slice” is coming from in the skull. By placing an image of the client’s reconstructed skill to the left, a medical illustrator can then demonstrate the image and injuries demonstrated on the right. Because, for the untrained eye, brain imaging can just look like black, white and a lot of grey. The illustration can bring this to life for the viewer.
As a consequence of my focus on TBI cases, I often end up with inner ear injury cases such as a canal dehiscence involving internal skull fractures over the inner ear – an injury that is difficult to explain to an adjustor who may only have a few days of formal training on traumatic injuries. Medical graphics companies have illustrated these for me in a series of images; 1. demonstrating the fracture in the skull base, 2. the external aspect of the neurosurgery necessary to repair the fracture, 3. the internal aspect of the neurosurgery necessary to repair the fracture, and 4. the end result of the repair. The medical illustrator was able to look at the imaging and ensure that the illustration used the exact same type of medical devices and same positioning as used on my client so that the imaging and illustration matched perfectly.
Many of the types of illustrations you may need for causation also apply to damages.
For me, quality of the work is key. I expect it may be due to my training as a doctor, but I really dislike cartoonish looking medical illustrations. Other than the accuracy and objectivity that is critical, I look for a vendor's dedication to the highest quality in illustration and animation. As someone who did cadaver dissection several hours a week for a year, I can tell you that the look of the bone used by High Impact in its illustrations is what it actually looks like. I want to make sure that no matter what I have illustrated, a defense expert (who may review my file prior to the settlement offer being made) would have no merit in criticizing the illustration or animation I submit to the insurer. Since ensuring credibility is key to me at every stage of my representation, ensuring my medical graphics support that image and reputation is important. Moreover, if the case doesn’t settle, I want to know that I could go in front of a jury of doctors and that all of them would find my medical exhibits the most authentic and compelling exhibit of anything shown during the case.
In terms of the injury illustrations your experts can use them to discuss the reasonable and necessary nature of the past treatment and bills in the reports you submit with your demand letter, as well as in trial if the case does not settle. They can be used to discuss the life care plan and the necessity for future care. Or they can be referenced to discuss past wage loss and diminished earning capacity.
Many of the litigation graphic vendors have also developed great graphics for showing the amount of treatment received before and after injury. The insurers have done this in a less fancy way for years, by highlighting dates on a calendar. But using a high quality graphic on this issue in your demand letter may help the adjustor realize that relying upon a small amount of pre-injury treatment is hopeless in front of a jury when compared to a visual barrage of treatment post-injury. Similarly, a graphic demonstrating ongoing treatment for the injury also helps support the cost of future care.
While it departs from demand letter writing, I’d like to cover the most compelling example of graphics work I've ever seen, and I can see this use case being used in a high level pre-litigation negotiation, or in a post-litigation mediation. This pertains to High Impact's development of a virtual reality demonstration of a post-brain injury visual deficit. It was shown to me now several years ago, at a time when virtual reality headsets had just been released to the public. This was not my case, but the law firm had worked with their vision expert and High Impact to recreate the client’s severely impacted field of vision. It matched up the findings of detailed visual testing with the presentation in the VR goggles. When you put on the VR mask you could not help but be struck by massive holes in this young plaintiff’s visual field. Much of the vision of one eye was gone, and in the other eye a good portion of his central vision was gone. High Impact had created different scenarios – what would it look like to go to a sporting event, or sit in school, or to do work on a computer, or drive. It became pretty evident that while the best words in a medical record to suit this situation were “he lost a significant part of his central field of vision” (or something to that effect) the practical effect is that this person could see almost nothing because the only remaining vision was in the peripheral vision where he couldn’t focus. If you moved your eyes in the VR setting to try to see the small amount in the peripheral vision, you now lost that part of the image because your eyes had moved. So, in a romantic setting you couldn’t even have your eyes on the person you wanted to see. It was both disabling and deforming. The person's eyes had to be off center to see the person they loved. Massive verdicts arise from one wandering eye because it socially impacts the person for life, but in this case it was far worse.
It may or may not seem like this is viable for settlement, but stick with me for a moment. We know we need to avoid the “golden rule” in litigation which prohibits us asking the jurors to put themselves in the plaintiff’s shoes. But, they need to understand the nature of a deficit and what the plaintiff experiences in order to properly value the claim. What better way than experience it and then consider the value? When you put on the VR headset you will get a much better understanding of the permanent non-economic damages that he would experience.
But this isn’t only viable for trial. As trial consultant Eric Oliver convinced me many years ago, your client’s case is about the impression of your case that you create for “fact-finders.” That isn’t just the jury. It includes the adjustor, their supervisor, all the way up the chain to home office. If the case isn’t amongst the 98% of cases that settle before litigation, then your “fact finders” in litigation include the defense lawyer, the judge and then the jury. You might include a mediator, or in some cases one or more arbitrators instead of the judge and jury.
But, it all starts with the adjustor. You have two choices here; you can send the medical record that says “partial loss of field of vision” or you can show them what that loss is actually like. So, what if you told the adjustor in writing that could be demonstrated by way of an animation or virtual reality graphic presentation the permanent damages to your client? The Unfair Claims Settlement Practices Act, incorporated in most states, requires that the insurer review all available information in making their determination of claim value. If the adjustor refuses to review it, despite you inviting them to your office to review the VR presentation, and sending it to them for their own review, then they subject themselves to claim practice litigation for failing to review this important document before requiring your client to go to trial to get the excess verdict. This isn’t a “set up” (which I do not think is appropriate). Nor do I think you need to set up most insurance adjustors for them to refuse to review documents or presentations of importance in your case. In my cases at least, they seem to be exceptional at failing to correctly value cases. I still give them the opportunity to correctly evaluate the case and make a reasonable offer.
Here is the harsh reality. The insurers already have identified which lawyers go to trial and which do not. My research on the Colossus book nearly 20 years ago demonstrated that, and our outcomes as lawyers are now being tracked by AI data. Offers are different to clients that hire a trial lawyer versus clients that hire a settlement lawyer. Trial Guides exists to help you litigate cases, so that you can get better settlement offers on the cases you do settle. Settlement Intelligence exists to help you obtain maximum settlement offers before having to file litigation, or during litigation.
As more insurers decrease claim value at every level of severity, the insurers know that less than 1% of lawyers will go to trial, so they have no risk no matter how low their offers go. But, for those of us who go to trial, it is important that we inform the insurer of the extent of our clients’ injuries so that they have an opportunity to make a good faith offer before we go to trial.
Many lawyers will argue that graphics will not be useful in every personal injury case. But, I know lawyers who have obtained high six figure and seven figure verdicts in "soft tissue" and less significant spinal injury cases where the patient has chronic pain. In those cases, illustrations can demonstrate injuries like sprains, strains, facet injuries and other such injuries to adjustors and jurors. In cases with demonstrable injury findings, the decision to purchase illustrations is often clearer. Working with a quality litigation graphics company can assist us to put forward our best case to get our clients the best settlement offers possible before litigation. If the insurer doesn’t make a reasonable offer at that point, then they are subject to the excess verdict and we are already ready for trial.