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John Lowery
John Lowery
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The Acts Before: What the jury doesn’t know in an injury trial

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The following is cross-posted at JohnLoweryLaw.com:

I’ve never served on a jury although I wish I could. To those called to serve as jurors in a trial it must seem like they’ve been dropped via parachute into a strange land with arcane language, judge worship and the only certainties being delay and boredom. If all the world is a stage then a civil trial is a five act play where jurors double as actors entering just before the epilogue and playwrights tasked with authoring the ending without really knowing what transpired in the several acts before. Rules of evidence and decorum prevent lawyers (and judges) from telling jurors certain things they wish jurors could know about the case and the people involved. Lawyers and litigants aren’t even allowed to engage a juror in conversation for fear of tainting the outcome, so we try to avoid contact in courthouse hallways, parking lots or restrooms and silently pray that jurors don’t take our avoidance as a slight that affects their perception of our client’s case. Many other facts big and small would be shared with jurors if lawyers were allowed to tell the entire story. We want jurors to have all their curiosities satisfied so they can focus on the ultimate issue, which is how to best fix the wrong that has been done in the case before them. For example, in an injury case the defense lawyer tells you he represents the defendant when in fact he has been hired by the defendant’s insurance company. In a simple car crash the defense lawyer often admits that his client caused the wreck as the trial starts in order to seem reasonable to the jury even though the insurance company paying his bill has refused to accept responsibility and has denied, delayed and litigated the claim for years in hopes of avoiding judgment day. We aren’t allowed to tell jurors whether or not a client’s medical bills have been paid by private health insurance or Medicare or that, if those bills have been paid by some entity, that entity has to be reimbursed out of the verdict. If Medicare or (in our state) TennCare have paid the bills and no sufficient verdict is obtained, the taxpayer ends up footing the bill for the defendant’s negligence instead of the responsible party being required to reimburse the government. In a medical malpractice case, we aren’t allowed to tell jurors that we often have to go out of state to find a testifying expert because the vast majority of doctors in Tennessee have banded together to form a cooperative that (1) provides insurance for all its members and (2) pays dividends to its members when it doesn’t have to pay malpractice verdicts to victims of medical negligence. Because of this financial incentive, local doctors stick together and blackball those few doctors that follow their conscience and speak out against medical negligence. The same is true in other states. Also, because the defense is funded by an insurance company with hundreds of millions of dollars at its disposal, they typically bring twice as many “experts” to trial as do the plaintiffs, whose experts are typically being paid out of limited funds advanced from the lawyer’s own pocket in hopes of being reimbursed if victory is attained. Jurors typically are unaware that most lawyers employed by insurance companies to represent defendants are paid by the hour and have a vested financial interest in clogging the system and dragging things out for years while most personal injury lawyers work for a contingency fee, which means they must invest, by the time a case gets to trial, hundreds of hours of time and many thousands of dollars in case expenses over a course of several years before getting the first penny of compensation, which will only come as a percentage of any verdict returned by the jury. Even the court reporter, who is not actually employed by the court in civil cases, is paid out of the lawyer’s pocket on one side and by the insurance company on the other when the bill is split between the parties. Court reporter fees alone typically run into the thousands of dollars by the time a case gets to trial and when a doctor or other expert testifies, he gets paid in advance for his time, also out of the lawyer’s pocket on one side and from the insurance company on the other.

We aren’t allowed to tell a jury that the impact of their decision in the case before them resonates far past the courtroom walls and sends a message to insurance companies and defendants about how they should conduct future business. A substantial verdict means they will be more likely to reasonably settle future claims and more likely to take precautions and try to prevent repeat behaviors. Failure to provide a reasonable verdict in a case of negligence results in at best an extension of the status quo and, at worst, a callous disregard for notions of accountability leading to even greater wrongs and more damages to future victims.

It really doesn’t seem fair that, in the multi-act drama that is civil litigation, jurors are given such extreme and ultimate responsibility and so few facts to consider about the actions occuring before the jury enters the stage, but that is our system and in spite of its flaws, remains the best ever put in practice for resolving disputes and attempting to right wrongs.

1 Comment

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  1. Avenger says:
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    Nice one-sided presentation. There are valid reasons for most of the prohibitions cited.

    Similarly in most jurisdictions , defendants are not allowed to present evidence of the percentage of business that quacks such as chiropractors get from personal injury attorney referrals nearly 100% in many cases). I could name many other situations in which the deck is stacked in favor of the plaintiffs but no point making an extremely long post out of this topic