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What Jurors Are Not Told

Hall Law promotes a fair and open court system in which the jurors are told the whole truth about what is going on in the case.  Unfortunately, the current court system is not as transparent as one might hope.

There is an ongoing debate in the legal field as to what information should be made known to our jurors and what should be kept secret. In our current legal system, a host of information is often still kept hidden from jurors. For example:

 

1. The vast majority of defendants in personal injury cases have liability insurance, but the fact that a defendant has insurance which will cover plaintiff's damages is almost always kept secret from the jury.


2. The fact that the defendant's lawyer and all legal expenses are paid for by the defendant's insurance company is typically kept secret from the jury.


3. The fact that the defendant's expert doctor is paid for by the defendant's insurance company, and that such doctors regularly testify over and over again for the same insurance companies in similar cases, is informaiton that is typically kept secret from the jury.


4. The fact that the verdict will be heavily reduced by attorneys fees, by separate costs of litigation (e.g. expert fees), and by repayment of past medical expenses, is information typically kept secret from the jury.


5. The fact that any verdict for medical expenses will be reduced by to ensure the Plaintiff will not recover for bills that have been paid by health insurers (public or private), is typically kept secret from the jury.

The Existence of Insurance

The vast majority of all personal injury awards are paid, not by individual defendants, but instead by the defendants’ insurance companies. Automobile owners, business owners and homeowners regularly pay significant premiums to insurance companies for the express purpose of insuring against liability to third parties. Thus, when an insured individual negligently causes injury to a third party, it is typically that person’s insurance company which defends against, and pays for, any claims brought by the third party.

Notably, the fact that a defendant has liability insurance which will cover both the defendant’s legal fees and the amount of any judgment is information that is often kept secret from the jury. Our courts routinely prevent jurors from hearing about applicable insurance coverage on the grounds that jurors' decisions might be influenced improperly by consideration of who would pay for any judgment. 11 Minn. Prac. 411.01. Specifically, the courts are concerned that jury verdicts might increase in magnitude if jurors were informed that a wealthy insurance company would be paying the judgment.

Unfortunately, hiding the existence of liability insurance from the jury often creates an even worse consequence. “Modern jurors are aware that insurance may be involved in personal injury litigation.” 11 Minn. Prac. 411.01. As such, jurors coming into a trial often have an expectation that the defendant probably carries liability insurance. When evidence of insurance is kept hidden, many jurors make the inaccurate assumption that the defendant must be uninsured. This assumption, that there is no insurance is dangerous because it can lead jurors to improperly reduce the amount of their verdicts in an effort to avoid putting too much economic burden on a defendant.

Notably, despite the court’s general tendency to exclude evidence of insurance, such evidence is often admitted where relevant to some other aspect of the case such as witness bias. Moreover, it should be noted that there is significant debate in the legal field as to whether evidence of insurance should be kept hidden from juries at all. The following passage from Storhaugen v. Motor Truck Service Co., 213 N.W. 372, 374 (1927) provides insight into the debate:

 

As a practical question it is submitted that justice and fair-dealing would not suffer by a candid disclosure to the jury as to who are the real parties to the litigation, who is the real defendant or the one who must pay if a verdict is for the plaintiff. And when such facts are disclosed, that court and counsel thereafter see to it that no argument or contention be made that because of the insurance the verdict should be otherwise than it would be were there no insurance. In fact, the parties would be entitled to an instruction that in determining who is entitled to a verdict the issues should be treated exactly as if there was no insurance, nor should the recovery, if any, be lessened or increased one penny because of insurance.

Defense Experts and Bias

The problem with the insurance industry and the experts it regularly hires is reflected in the ancient Slavic proverb: “Whose bread I eat, his song I sing.” Obviously, when an expert has a significant and often long-standing financial relationship with the insurance company he or she testifies for, there is a significant danger that the expert’s opinions may be colored by bias. For this very reason, insurance companies and the defense attorneys they hire regularly try to hide the factual details behind their relationships with the experts they put on the stand. To reveal such details would expose the fact that the defense experts are often little more than “hired guns” who are paid significant sums of money to regularly testify for insurance companies and against plaintiffs regardless of the actual facts of the individual case.

Defense medical experts are probably the most notorious for being biased in favor of the insurance companies they work for. Many of these doctors make hundreds of thousands of dollars each year testifying against plaintiffs on behalf of the insurance companies who pay the fees. Such experts are polished professionals who call themselves “independent medical examiners” and who can be very convincing to a jury that is not aware of the experts’ financial interest in saying what the insurance company wants the jury to hear.

For obvious reasons, the insurance companies and their defense attorneys put forth significant efforts in trying to hide their relationships with the doctors they hire. They usually try to prevent the jury from finding out that the doctor was paid for by the insurance company. They try to prevent the jury form finding out just how much the doctor has earned from that insurance company in the past. They try to prevent juries from knowing just how many years a particular defense counsel and a certain doctor have worked together.

The insurance industry’s effort to hide such information is contrary to one of the fundamental tenants of our legal system. That is evidence of a witness’s bias is always relevant, and is admissible as a matter of right. Rule 616, Minn. R. Evid.; State v. Elijah, 289 N.W. 575, 579 (1940). Evidence tending to show that an expert witness has frequently testified or otherwise been involved in litigation for one party directly relates to the weight a jury may afford to such testimony.  See State v. Horman, 247 NW 4, (Minn. 1933). If, in fact, an insurance company has a long history of repeatedly hiring a doctor to do "independent" medical examinations, and, over the years, they have paid such doctor hundreds of thousands of dollars for that testimony, then a jury might rightly question the doctor’s impartiality in this case. It is for this reason that many in the legal field believe evidence of a doctor’s ongoing relationship with an insurance company should not be hidden from a jury.

Jurors Are Often Unaware of the Consequences of Their Verdict Answers

Jurors are often not told the consequences of the answers they give to the special verdict form. For example, a plaintiff involved in a motor vehicle accident may recover pain and suffering damages only if he passes one of the following four tort thresholds: (1) $4,000.00 in medical expenses, (2) a permanent injury, (3) a permanent disfigurement, or (4) 60 days of disability. Typically the verdict form asks jurors to determine whether any of these thresholds is met. Jurors are not told why they are being asked this, and typically do not know that if they answer “no” as to each threshold, the plaintiff will be denied pain and suffering damages. This is true even where the jury specifically provides for pain and suffering damages to the plaintiff in their verdict. Keeping jurors in the dark like this creates the potential for perverse verdicts in which plaintiffs who otherwise deserve to be compensated are denied their award.

Reduction of Jury Verdicts

Unfortunately the amount an individual personal injury plaintiff actual ends up receiving is almost always dramatically less than the amount awarded by the jury. There are several reasons for this reduction. First, a plaintiff must pay for his lawyer. Typically, this amounts to 1/3rd of the total award. Second, a plaintiff is responsible for paying costs of suit which typically include, court filing fees, copy charges, court reporter fees, expert fees, and subpoena costs. Such costs vary greatly from case to case, and can sometimes be very expensive. Third, a plaintiff’s award is generally reduced by the amount of any insurance benefits already received. Thus, the medical expenses portion of many awards is either deducted by the judge or paid over to the insurance company.

The fact that jurors are often unaware of these considerations means that jurors who are calculating the damages a plaintiff should receive, often do so with inaccurate assumptions about where the money will go. In this way, plaintiffs are often under-compensated for their injuries.