When I speak to jurors after one of my trials, at least one of the twelve members always asks me, “Why didn’t insurance take care of this?” That’s a good question. The truth of the matter is in most personal injury cases insurance is involved all the way through satisfaction of any judgment entered on the jury verdict. Who do you think pays for that defense attorney? The insurance company does. They have a contractual duty to defend the policyholder under the policy should they be unfortunate enough to get sued by somebody like me.
Even though insurance is involved, the jury never gets to hear about it in the majority of cases. North Carolina has a rule and much case law establishing a prohibition against mentioning the existence (or non-existence) of insurance at trial. The prevailing theory behind this prohibition is the Courts are afraid the monetary resources of the insurance company, rather than the evidence presented at trial, will be what serve as the basis for any verdict. In short, the Courts are afraid that the jury might use the existence of insurance as an excuse to compensate the victim without hurting the wrongdoer (or, not compensating the deserving victim to avoid hurting the uninsured wrongdoer). They’re afraid that a jury will award an amount just because the company made big profits last year and Dennis Haysbert tells us we’re “in good hands” at least twice per hour during primetime television (read: really expensive advertising slots). This fear may or may not be unfounded. Some jurors have told this trial lawyer that it would impact their decision. On the other hand, in one trial where evidence of insurance was allowed to be considered by the jury (there are exceptions to the rule), one juror stated that the fact there was insurance didn’t even come up in deliberations.
Some clients become upset with this rule. They feel it’s unfair to them and that it deceives the jury. This is a reasonable belief. But, the defendant and the insurance carrier could say the same thing about another rule established by the North Carolina courts. The collateral source rule prohibits evidence from being introduced of payments made to the Plaintiff by health insurance plans, Medicare, Medicaid, medical payments coverage, and many other different sources of payment. This benefits the Plaintiff because it allows the Plaintiff to recover the entire amount of the bills incurred even if health insurance or some other benefit has paid out already (in some cases the health plan has a right to reimbursement for what it has paid) and the jury will likely never know some of the bills were paid. This rule, of course, usually results in more money to the client.
Insurance plays a big part in any personal injury case. Despite its large role, the jury most likely will never know of its existence and will be specifically instructed by the Court in most cases to not assume that it is or is not there. Insurance, ladies and gentlemen, is what the evidence at trial won’t show.
Friday, February 26, 2010
Thursday, February 25, 2010
What's That Got to Do with Anything?
My clients often become annoyed (to say the least) when we reach the discovery phase of the litigation process and they are suddenly bombarded with questions concerning their criminal background, prior accident history, prior legal and insurance claims, and prior health history. At some point, usually very early on in the process, they roll their eyes and exasperatingly inquire, “What’s that got to do with anything?” Well, let me tell you.
Rest assured that most of your prior criminal mistakes, accidents, and claims have little to do with your current case and may not even make it into evidence at trial. In discovery, however, the legal standard in North Carolina is not that which is actually admissible, but rather that which may potentially lead to admissible evidence. Therefore, you must disclose most of the information requested even if a jury never gets to hear it. If you do not disclose it, then the likelihood of the jury hearing it increases exponentially because the defense will be conducting an investigation on you of their own, find it, and then confront you with it. At that point, they impeach your credibility for not fessing up and the jury will now probably not like you for failing to tell about it. In short, they’ll think you’re now a liar and that you tried to hide something (even if you innocently forgot).
The defense is interested in your prior criminal history because there may be something in your past that theoretically bears upon your “character for truthfulness.” In short, if you’ve been convicted of something like embezzlement in your past then the defense may be able to use that in the judge’s discretion to argue to the jury that you’re not necessarily the most truthful person and therefore they should not believe you. The defense is interested in your prior insurance and legal claims because they are interested in making you look litigious. Our current society tends to disfavor litigiousness. People are too quick to sue, says the prevailing public sentiment. Let’s ignore the fact that it’s your legal right to assert valid claims when necessary and that the tens of thousands of dollars you pay in insurance premiums over the course of your lifetime are suppose to go to paying for such claims. These are just a few of the reasons why you are asked these questions.
One of the essential elements of a negligence claim is the element of “causation.” You (we) must prove, by the greater weight of the evidence, that your neck, back, shoulder, knee or [insert other body part here] injury is related to the accident. This is where your prior accident and prior health history become relevant. For example, if you’re suffering from lower back pain after the collision and you’ve only been to the doctor once before in the past few years for the flu, then your case for causation is pretty strong because you have no similar symptoms in the past and it’s more likely that the accident caused your pain. If, however, you’ve had a multi-level spinal decompression and fusion surgery to your lumbar spine in the past few years, then your case for causation is probably not great. Regardless, it will ultimately be up to your doctor to educate and assist the jury in determining which of your symptoms are related and what treatment was necessary due to the accident.
Ultimately, if you’re concerned about how something from your past may affect your current case, speak with your attorney about it. Tell us up front and right off the bat. We’re here to help you in anyway we can and it’s best for us to be prepared if there is something potentially harmful in your past. As J.R. Solly said, “be frank and explicit with your lawyer…it is his business to confuse the issue afterwards.”
Rest assured that most of your prior criminal mistakes, accidents, and claims have little to do with your current case and may not even make it into evidence at trial. In discovery, however, the legal standard in North Carolina is not that which is actually admissible, but rather that which may potentially lead to admissible evidence. Therefore, you must disclose most of the information requested even if a jury never gets to hear it. If you do not disclose it, then the likelihood of the jury hearing it increases exponentially because the defense will be conducting an investigation on you of their own, find it, and then confront you with it. At that point, they impeach your credibility for not fessing up and the jury will now probably not like you for failing to tell about it. In short, they’ll think you’re now a liar and that you tried to hide something (even if you innocently forgot).
The defense is interested in your prior criminal history because there may be something in your past that theoretically bears upon your “character for truthfulness.” In short, if you’ve been convicted of something like embezzlement in your past then the defense may be able to use that in the judge’s discretion to argue to the jury that you’re not necessarily the most truthful person and therefore they should not believe you. The defense is interested in your prior insurance and legal claims because they are interested in making you look litigious. Our current society tends to disfavor litigiousness. People are too quick to sue, says the prevailing public sentiment. Let’s ignore the fact that it’s your legal right to assert valid claims when necessary and that the tens of thousands of dollars you pay in insurance premiums over the course of your lifetime are suppose to go to paying for such claims. These are just a few of the reasons why you are asked these questions.
One of the essential elements of a negligence claim is the element of “causation.” You (we) must prove, by the greater weight of the evidence, that your neck, back, shoulder, knee or [insert other body part here] injury is related to the accident. This is where your prior accident and prior health history become relevant. For example, if you’re suffering from lower back pain after the collision and you’ve only been to the doctor once before in the past few years for the flu, then your case for causation is pretty strong because you have no similar symptoms in the past and it’s more likely that the accident caused your pain. If, however, you’ve had a multi-level spinal decompression and fusion surgery to your lumbar spine in the past few years, then your case for causation is probably not great. Regardless, it will ultimately be up to your doctor to educate and assist the jury in determining which of your symptoms are related and what treatment was necessary due to the accident.
Ultimately, if you’re concerned about how something from your past may affect your current case, speak with your attorney about it. Tell us up front and right off the bat. We’re here to help you in anyway we can and it’s best for us to be prepared if there is something potentially harmful in your past. As J.R. Solly said, “be frank and explicit with your lawyer…it is his business to confuse the issue afterwards.”
Wednesday, February 24, 2010
Coffee Talk
I have yet to pick a jury where I didn’t hear the phrase “McDonald’s coffee” at some point in the voir dire process. The case has become the poster child for the Tort Reform movement and virtually everyone in the country (and perhaps the world) has heard about it at some point in their life. But, was the verdict truly the most ridiculous verdict in the nation’s history? Were those twelve jurors really that stupid? Before you answer, consider the following facts about Liebeck v. McDonald’s that many people do not know:
1. Stella Liebeck, the “coffee lady,” placed the Styrofoam cup between her legs as her grandson stopped the car so that she could add cream and sugar to her coffee (have you noticed how McDonald’s does this for you now?). Many people believe she spilled the coffee as she was driving herself and while the car was in motion.
2. The coffee served by McDonald’s was so hot it caused instant third degree burns to over six percent of her body. This six percent included her inner thighs, her buttocks, her genitals, and her groin. She was hospitalized for eight days as a result of her injuries.
3. Liebeck offered to settle her case with McDonald’s for $20,000.00 well before the jury returned with the now infamous $2.86 million verdict.
4. More than 700 people had been burned by McDonald’s coffee in a ten year period prior to Liebeck’s incident. Some of these people suffered substantially similar burns as Liebeck.
5. Coffee brewed at home is typically served between 135 and 140 degrees. McDonald’s coffee was served between 180 and 190 degrees. A burn hazard exists whenever a food substance is served over 140 degrees.
6. McDonald’s knew about the burn hazard, but the company’s quality assurance manager testified the company had no intention of reducing the temperature of its coffee.
7. McDonald’s argued that it kept its coffee so hot because the customers would consume it at home and work and wanted it to still be hot when they arrived there. However, the company’s own research showed that most customers would begin to consume the coffee immediately.
8. The verdict handed down by the jury was originally $200,000 in compensatory damages and $2.7 million in punitive damages. The $200,000 was reduced to $160,000 because the jury found Liebeck twenty percent at fault in the spill (of note, in North Carolina which has the doctrine of contributory negligence, this finding of fault on the part of Liebeck would have resulted in no recovery for Liebeck at all). McDonald’s made $2.7 million in coffee sales alone over a two day period at the time.
9. The trial judge reduced the $2.7 million award to $480,000, three times the compensatory award of $160,000. North Carolina has a similar law.
10. The jury that handed down the $2.86 million verdict was selected by both the Plaintiff, Stella Liebeck, and the Defendant, McDonald’s.
I’m not going to defend the coffee verdict and if you disagree with that jury that’s your right. All I’m saying is that you can probably find more “ridiculous” verdicts in American jurisprudence when you look at all the facts. It is easy for us (this trial lawyer included) to look at a jury verdict and wonder what those twelve allegedly reasonable people could have been thinking. But, the cornerstone of our judicial system is the jury. If we lose faith in our juries, then the system cannot work.
Sources: Lectric Law Library ; Economic Expert
1. Stella Liebeck, the “coffee lady,” placed the Styrofoam cup between her legs as her grandson stopped the car so that she could add cream and sugar to her coffee (have you noticed how McDonald’s does this for you now?). Many people believe she spilled the coffee as she was driving herself and while the car was in motion.
2. The coffee served by McDonald’s was so hot it caused instant third degree burns to over six percent of her body. This six percent included her inner thighs, her buttocks, her genitals, and her groin. She was hospitalized for eight days as a result of her injuries.
3. Liebeck offered to settle her case with McDonald’s for $20,000.00 well before the jury returned with the now infamous $2.86 million verdict.
4. More than 700 people had been burned by McDonald’s coffee in a ten year period prior to Liebeck’s incident. Some of these people suffered substantially similar burns as Liebeck.
5. Coffee brewed at home is typically served between 135 and 140 degrees. McDonald’s coffee was served between 180 and 190 degrees. A burn hazard exists whenever a food substance is served over 140 degrees.
6. McDonald’s knew about the burn hazard, but the company’s quality assurance manager testified the company had no intention of reducing the temperature of its coffee.
7. McDonald’s argued that it kept its coffee so hot because the customers would consume it at home and work and wanted it to still be hot when they arrived there. However, the company’s own research showed that most customers would begin to consume the coffee immediately.
8. The verdict handed down by the jury was originally $200,000 in compensatory damages and $2.7 million in punitive damages. The $200,000 was reduced to $160,000 because the jury found Liebeck twenty percent at fault in the spill (of note, in North Carolina which has the doctrine of contributory negligence, this finding of fault on the part of Liebeck would have resulted in no recovery for Liebeck at all). McDonald’s made $2.7 million in coffee sales alone over a two day period at the time.
9. The trial judge reduced the $2.7 million award to $480,000, three times the compensatory award of $160,000. North Carolina has a similar law.
10. The jury that handed down the $2.86 million verdict was selected by both the Plaintiff, Stella Liebeck, and the Defendant, McDonald’s.
I’m not going to defend the coffee verdict and if you disagree with that jury that’s your right. All I’m saying is that you can probably find more “ridiculous” verdicts in American jurisprudence when you look at all the facts. It is easy for us (this trial lawyer included) to look at a jury verdict and wonder what those twelve allegedly reasonable people could have been thinking. But, the cornerstone of our judicial system is the jury. If we lose faith in our juries, then the system cannot work.
Sources: Lectric Law Library ; Economic Expert
Tuesday, February 23, 2010
Trivial Pursuits
Ask most people what I do for a living and they’ll say that I chase ambulances. That is false. North Carolina has a law prohibiting such conduct; and I, for one, am far too out of shape to ever hope to run and catch one. The truth of the matter, however, is that I do sue people for a living. In every jury trial I’ve done so far in my career I’ve found that the prevailing sentiment among the general public is that there are just too many lawsuits. Frivolous lawsuits. People are suing other people over trivial matters at the behest of some greedy ambulance chaser. So, why do so many people file lawsuits each year?
The answer is fairly simple from my perspective. In the personal injury context, it is often due to the behavior of the insurance companies. The overwhelming majority of my clients come into my office and say the exact same thing: “I’m not one for suing people. I’m not litigious.” Well, with all due respect to them, this is obviously not true because they're in my office and litigation is my business. But in reality, even though I am allegedly a fairly nice guy and easy to talk to, all of them would rather not have to spend an afternoon with me. The client ends up in my office for the simple reason that the insurance company involved in the case often refuses to pay for the medical bills, lost wages and other damages the client suffered through no fault of their own.
Since the 1990s, the country’s largest insurance carriers have adopted a “get tough” approach to personal injury claims. This approach focuses not on the individual consumer, but rather the profits the industry brings in every year. As a result, the company’s own policyholders (you) end up getting dragged into court by people like me for claims that in all likelihood would settled if the companies would do the responsible thing and pay the often reasonable amounts the clients lose due to the company’s insured’s negligence.
The strategy works for the insurance industry. Fighting legitimate claims with their vast financial resources discourages worthy plaintiffs from going to court. Some companies, such as Allstate, routinely make line-in-the-sand offers that are far less than the actual medical bills the client incurred in the collision with their insured. By low-balling the client, the company actually forces the case into the court system. According to one former Allstate employee, the company puts claimants in good hands by making it “so expensive and time consuming that the lawyers would start refusing to help clients.”
Not this lawyer. I routinely fight Allstate and other major insurance companies in court on behalf of my clients and will continue to do so in the future. If a person is in a collision and the greater weight of the evidence shows that they were injured in that collision, this ambulance chaser believes that they should be able to recover for what they have lost through the fault of someone else. Is that really that frivolous?
Sources: CNN and the author’s own experience in litigating personal injury claims.
Disclaimer: The views of the author are his own. It is your right to disagree with them.
The answer is fairly simple from my perspective. In the personal injury context, it is often due to the behavior of the insurance companies. The overwhelming majority of my clients come into my office and say the exact same thing: “I’m not one for suing people. I’m not litigious.” Well, with all due respect to them, this is obviously not true because they're in my office and litigation is my business. But in reality, even though I am allegedly a fairly nice guy and easy to talk to, all of them would rather not have to spend an afternoon with me. The client ends up in my office for the simple reason that the insurance company involved in the case often refuses to pay for the medical bills, lost wages and other damages the client suffered through no fault of their own.
Since the 1990s, the country’s largest insurance carriers have adopted a “get tough” approach to personal injury claims. This approach focuses not on the individual consumer, but rather the profits the industry brings in every year. As a result, the company’s own policyholders (you) end up getting dragged into court by people like me for claims that in all likelihood would settled if the companies would do the responsible thing and pay the often reasonable amounts the clients lose due to the company’s insured’s negligence.
The strategy works for the insurance industry. Fighting legitimate claims with their vast financial resources discourages worthy plaintiffs from going to court. Some companies, such as Allstate, routinely make line-in-the-sand offers that are far less than the actual medical bills the client incurred in the collision with their insured. By low-balling the client, the company actually forces the case into the court system. According to one former Allstate employee, the company puts claimants in good hands by making it “so expensive and time consuming that the lawyers would start refusing to help clients.”
Not this lawyer. I routinely fight Allstate and other major insurance companies in court on behalf of my clients and will continue to do so in the future. If a person is in a collision and the greater weight of the evidence shows that they were injured in that collision, this ambulance chaser believes that they should be able to recover for what they have lost through the fault of someone else. Is that really that frivolous?
Sources: CNN and the author’s own experience in litigating personal injury claims.
Disclaimer: The views of the author are his own. It is your right to disagree with them.
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