Not every insurance adjuster handles claims in bad faith, and not every defense attorney litigates to exhaust rather than resolve. In my experience handling personal injury cases, some adjusters evaluate claims honestly, make reasonable offers when the facts support them, and move cases toward fair resolution without manufacturing obstacles. Some defense attorneys litigate the same way — straight, on the merits, without procedural games.

But some do not. And the ones who do not tend to follow a recognizable pattern. It has a name in litigation circles: scorched earth. The goal is not to win on the facts. The goal is to make the case too expensive, too exhausting,  and to manufacture legal arguments that reduce what a plaintiff can recover at trial even if the pain of the injuries continue to persist. In my experience, this pattern runs in two phases with two different actors, and most injured people never recognize it as a coordinated strategy because it looks, from the outside, like ordinary bureaucracy.

The Goal Is Not to Win at Trial — It Is to Win Before You Get There

When a scorched earth approach is in play, it typically starts before a lawsuit is ever filed. The adjuster acknowledges the claim, expresses willingness to reach a fair resolution, and asks for more information — medical records, a recorded statement, documentation of lost wages. You provide it. Weeks pass. The adjuster needs additional time to review. There are follow-up questions. The claim is still under evaluation. More months pass. A legitimate offer never materializes.

The delay at this stage is not administrative. It is strategic. Every week the claim sits unresolved is a week during which the injured person might miss a physical therapy appointment, fall behind on treatment, or decide the process is not worth continuing. Some adjusters using this approach will string a claimant along for for as long as they can, before it becomes clear that no serious offer is coming and that filing suit is the only path forward.

When suit is filed, defense counsel takes over and runs the same play with different vocabulary. Discovery is not complete. Depositions have not been taken. An independent medical examination is needed. Expert designations are not due for months. The case that was already eight months old when suit was filed is now approaching two years old — and the same gaps that were accumulating during the claims phase are still accumulating.

The through-line between the adjuster's delay and the defense attorney's delay, when this pattern is present, is not coincidence. It is a coordinated system designed to produce two outcomes simultaneously: a plaintiff whose treatment records contain gaps that become legal arguments at trial, and a plaintiff who has run out of money, patience, or both.

The Treatment Gap Play — Stage 1 and Stage 2

California's standard jury instruction on mitigation of damages — CACI 3930 — tells the jury this: if a plaintiff could have avoided some portion of harm through reasonable efforts or expenditures, the defendant does not have to pay for that portion. The burden of proving failure to mitigate is on the defense. But give them a gap in treatment records, and they have something to work with. A scorched earth strategy is, in significant part, a deliberate effort to create those gaps.

The strategy works in two distinct stages, and the legal standard is different for each.

Stage 1: Creating Gaps in Conservative Treatment

In the early months after an accident, the standard course of treatment for soft tissue injuries, orthopedic injuries, and many spinal injuries is conservative: physical therapy, chiropractic care, anti-inflammatories, rest. This treatment is not invasive. It does not carry surgical risk. It is the kind of treatment that a jury, applying a reasonable person standard, would expect an injured person to complete.

The delay strategy is designed to make consistent completion of that treatment harder. As months pass and the case shows no sign of resolving, financial pressure builds. A plaintiff who is not working, or who is working less, starts making decisions about which appointments to keep and which to defer. A stretch of missed sessions becomes a two-month gap in the records. A scorched earth defense documents every gap.

At trial or in settlement negotiations, the argument is straightforward: the plaintiff failed to take the reasonable, non-invasive steps available to them. CACI 3930 asks whether the plaintiff acted with reasonable efforts in light of their circumstances. A multi-month gap in physical therapy is the kind of evidence the defense is hoping the delay will produce. 

But the reasonableness standard cuts both ways. CACI 3930 explicitly tells the jury to consider whether the required efforts would impose "undue risk or hardship" on the plaintiff. The California Supreme Court held in Valencia v. Shell Oil Co. (1944) 23 Cal.2d 840 that the duty to mitigate does not run to a person who is financially unable to make the required expenditures. A treatment gap is not automatically a failure to mitigate. If the nearest physical therapy clinic is one hour away (with traffic) and the plaintiff has no reliable transportation, weekly appointments are not a reasonable expectation regardless of how non-invasive the treatment is. If financial hardship prevented consistent care, the defense argument fails under the same instruction they are relying on. Not everyone has the freedom and financial flexibility to consistently attend doctors appointments in the middle of the weekday. 

Stage 2: The End of Conservative Options

The case drags long enough that conservative treatment is exhausted. Physical therapy is done. Time has passed. The plaintiff is still in pain. The remaining treatment options are injections or surgery. The plaintiff does not want to undergo an invasive procedure. They decide to live with the pain.

A scorched earth defense now argues one of two things. First, that the plaintiff stopped treating and is therefore pain-free — the gap in the records is evidence of recovery, not continued suffering. Second, and more aggressively, that the plaintiff failed to mitigate by refusing the recommended treatment.

The second argument fails under California law. Valencia v. Shell Oil Co. is direct: the duty to mitigate does not require a plaintiff to undergo unreasonable or impracticable treatment. CACI 3930 tells the jury to consider whether continued treatment would require "undue risk or hardship." Surgery carries risk. Injections carry risk. Declining invasive treatment in favor of living with pain is a legally protected choice. A jury properly instructed under CACI 3930 cannot penalize a plaintiff for refusing surgery or injections when those are the only remaining options.

A scorched earth defense makes the argument anyway, hoping the jury does not understand the legal distinction — or that the pressure of the argument drives a settlement before trial, or the defense is hoping the personal injury attorney is unaware of the Valencia principle.

The Line the Defense Tries to Blur

Stage 1 and Stage 2 carry different legal standards, and the scorched earth strategy is to present them as a single narrative: plaintiff stopped treating. Whether the gap occurred during conservative care that was genuinely accessible, during conservative care that was practically impossible to maintain, or after conservative options were exhausted and only invasive options remained — the defense collapses it all into one picture of a plaintiff who did not take their own injuries seriously, and after the injured person fails to mitgiate damages, the defense argues they are no longer entitled to any futiure medical expenses or pain and suffering from that point. 

The counter is to keep the record clean from the beginning. Consistent treatment during conservative care. Contemporaneous documentation of any barriers — financial, geographic, logistical — that made consistent treatment unreasonably difficult. Clear notation in the medical records when the treating physician moves from recommending conservative care to recommending injections or surgery. A documented, explained decision when a plaintiff declines invasive treatment.

None of this is complicated, but most people dealing with an injury are simply attempting to get better, which they should be, but making sure everything is documented protects you in the end, and it helps deny the defense the scorched earth success they are seeking. 

What This Means for Your Case

If the adjuster handling your claim is working in good faith, none of this applies. You will know that by whether serious offers are made at reasonable intervals and whether the process moves. If it does not move — if requests for more information repeat without resolution, if months pass without a meaningful offer, if the case slides into suit and the same delays continue under new names — then what I have described here is likely what is happening.

 Recognizing it early doesn't necessarily change how you approach medical treatment or the case in general, but it helps to know what you are dealing with as soon as possible, so that expectations are clear.  The insurance company, who ultimately is executing this strategy, through either their adjuster or attorney, also likes to add the additional scorched earth tactic of communicating that a settlement is forthcoming to get the injured persons hopes up that the case is finally going to be over and they can focus on their treatment, leaving them much more disheartened when the scorched earth reality kicks in (which it will kick in). 

If you understand you are in a scorched earth scenario, your hopes don't get up. You know it's going to trial, and if you have the right lawyer, you should be comfortable with that. At the end of it all, juries understand that people who are injured want to get better, juries see through the insurance companies' schemes, that is why the insurance companies work so hard to avoid juries, and why your lawyer should be working so hard to get one.

Attorney Michael Rehm handles personal injury cases throughout California on a contingency fee basis. No fee without a recovery. Call (916) 233-7346 for a free consultation.