In Defense Of The Term Whiplash

Presented to: Traumatic Brain Injury, Litigation Group Conference, February 16, 1996, New Orleans, LA

Editors note: This presentation was given as an interactive talk with an audience of trial lawyers as mock jurors, to demonstrate the way the word whiplash can be used in voir dire to educate the jury about the risk of permanent injury in a whiplash case.

I. Whiplash is a Great Term.

A. Tort Reform Barometer: It provides the point /counterpoint discussion to feret out Tort Reform attitudes with the jury. How many people equate the term to faker, malingerer?

1. Issues of the capacity of scientific testing to see the microscopic. Man on the moon analogy:

• Can you see him with the naked eye?
• With binoculars?
• With the best telescope?
• Through the miracles of television?

B. It is Biomechanically Descriptive

1. Learning Pyramid.

• 5% what you hear
• 10% what you read
• 20% what you see
• 50% what you discuss
• 90% what you teach

2 Use the term whiplash to get the jury to instruct each other about the theory of rotational motion.

3. Analogize the term whiplash to human body dynamics, through examples of extreme acceleration as a result of a fulcrum.

• Whips
• Fishing rods
• Ice skating, cracking the whip.
• Have jurors give examples

4. Get the jury to teach each other about the principle of a fulcrum, then have them teach you about the fulcrum in a car accident. Specifically with respect to two types of accidents, front end, rear end.

• Seatbelt is the fulcrum in the front end.
• Seat is the fulcrum in the rear end.

5. Get the jury to discover the biomechanics of why the neck and brain get injured in a whiplash accident.

• Have them try the movements
• Why is a neck injury worse from rear end than front end?
• Anyone know why they are not putting lap belts in rear seats any longer?

II. Do You Have a Better Term?

A. Keep it Simple. The terms people understand, are the best for communication. Too much song and dance, technical terms, not what people know. Call a spade a spade, deal with the cliche.

B. Other Terms? Neck cripples, acceleration/deceleration, hyperextension/flexion, soft tissue, myofascial pain. Are these better?

C. Fulcrum Injury? How about some play on the word fulcrum?

D. Advantages of “Whiplash” Outweigh Connotations.

Are the negative connotations of the term whiplash so bad as to outweigh the advantages of using a simple descriptive term, that provides you with an innate platform to corroborate your biomechanical testimony?

III. Why Take the Whiplash Case?

A. Build Brain Injury Practice. Whiplash cases provide the opportunity to build a brain injury practice. In my experience a third or more whiplash cases involve some concussion, even if no clear cut permanent deficits.

B. Soft Tissue Injuries Can Have Substantial Value. Whiplash cases may involve severe injury even without brain injury.

C. Give Them the Respect They Deserve. If you handle your Soft-Tissue cases with the same sort of investigation and commitment as your brain injury cases, you may find their injuries as life altering and devastating as those that involve brain injury.

1. Soft tissue clients have many of the same problems as brain injured clients . One of the challenges in screening for brain injury is differentiating between the symptoms caused by soft-tissue injury and by brain injury.

2. Soft tissue cases require the same commitment to proving the unseen injury as brain injury cases.

• a. Where appropriate retain these experts: biomechanical, vocational, life care, hedonic proof.
• b. Get the lay witnesses. Get the lay witnesses. Get the lay witnesses. Invariably there will be some preexisting treatment. It is the lay witnesses that help you draw the line of demarcation which will prove the causal link between the trauma of this accident and the current disability

Conclusion

Don’t be afraid of either the term whiplash or the type of cases that these injuries imply. The acceleration/deceleration forces which cause the whiplash injury, are sufficient to permanently disable your client without other external forces. A good whiplash case can be a great case.
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Understanding Subtle Brain Injury

The concussions that disable, are almost always more symptomatic at 24 hours, than at the 2-4 hour time frame when injured persons are evaluated in the emergency room. Brain injury symptoms escalate over the first 24 hours, because brain injury involves a cascade of events. It is critical that if you are still symptomatic the day after your injury, go back to the same Emergency Room, don’t wait for a doctors appointment. It is critical that the Emergency Room personnel see that the symptoms still persist or have gotten worse.

View Our Video Series on Concussions