I have recently had a run of cases which have gone to trial before a jury in both Maryland and the District of Columbia. It is said that only the most difficult of cases make it to a jury because the vast majority of cases are settled before reaching the trial stage. By definition then, once you get to the point that the case is being tried, anything can really happen. There are arguments to be made on both sides and the degree to which the jury believes one side over the other will determine the outcome of the case.
But recently I have been baffled by the verdicts that some juries have returned. In one case I had, a car accident in which my client and her two children were injured, the jury agreed that my client was not at fault, that the other driver caused the accident, that the injuries were a result of the accident, and yet – the jury only awarded the clients money to cover the cost of their emergency room visits. They did not award them anything for the thousands of dollars of additional medical treatment that the clients required and instead essentially said that they did not think that the people were hurt that bad or required the treatment. There was no medical testimony from a defense doctor saying that the treatment was not required. The jury simply chose to ignore that evidence.
In another recent case, a jury awarded my client all of her medical bills – meaning, that they gave her thousands of dollars to pay for the extensive medical treatment she received as a result of the accident she was in. But… they only awarded her a couple of hundred dollars for her pain and suffering. Now if she received treatment for months and her life and routine her disrupted for months, doesn't it stand to reason that the non-economic damages (the pain and suffering) ought to be consistent with that disruptment? Again, the jury chose to ignore that evidence.
A judge recently laid out her beliefs to me as to why this is tending to be the case more often in her courtroom as follows:
1. CSI Factor – jurors see shows like CSI and conclude that demonstrative evidence can be found to prove just about any fact. In the case of soft-tissue injuries (whiplash, for instance) there isn't any CSI like evidence and therefore juries tend not to believe that the party was injured.
2. Burden of Proof – in a civil trial the burden of proof is by a preponderance of the evidence meaning if it is 51-49% then the plaintiff has proven her case. But jurors seem to be holding parties to a higher standard more similar to the criminal standard of beyond a reasonable doubt despite instructions not to do so.
3. Juries Don't Listen – a lot of people who serve on a jury don't want to be there and resent the fact that they are required to serve. A trial has a lot of procedural dull spots and some jurors simply tune out. They have made up their mind early and don't hear crucial evidence.
4. Juries Substitute Their Own Experiences – the majority of folks who serve on a jury have themselves at one time or another been involved in a minor accident and walked away without any injury. Often times they simply look at the pictures of the accident and hear the testimony of the parties and conclude that since they themselves weren't hurt in their own accident that the parties here couldn't possibly have been hurt in the accident of which thy complain.
5. Juries Assume Insurance Took Care of It – juries are given and instruction and told that they should not consider whether or not the plaintiff's medical insurance might have paid her bills. This is called the collateral source rule. Attorneys are prevented from mentioning insurance and in fact redact any evidence of insurance out of the medical bills offered to the jury as evidence. All plaintiffs are to be treated as if they don't have insurance because some do not. And even if they did, the overwhelming majority of them will have to pay their insurance companies back first if the jury awards them any money. But interviews with jurors after trial has revealed that they often take insurance coverage as a factor to consider when determining an award.
So what do we do? The answer has always been if you can settle the case without going to trial that you are far better off. Getting “your day in court” may be emotionally satisfying but the odds are that you will be disappointed once the jury returns a verdict. Unless you have CSI like evidence on your side, then you take your chances with a jury of your peers.