The right to jury trial arises by statute. In most jurisdictions, where the value in controversy exceeds a certain dollar amount, the right to jury trial will be preserved. Most personal injury auto accident cases that result in jury trials have some weakness. In some cases there is a delay in obtaining medical treatment after an accident. In some cases there is a delay in the development of symptom after an accident. In some cases pre-existing conditions are exacerbated or aggravated and there is no new injury. In other cases a person complains a pain without any positive diagnostic findings. Many times we see severe injuries with very minor property damage to the involved vehicles. Many of these difficult cases are tried and result in defense verdicts.
Sometimes difficult cases go to trial with a surprisingly good outcome.
Insurance companies will spend money to litigate these cases, because they know some personal injury attorneys do not want to incur the expenses to take them to trial. Many of these difficult cases settle for a nominal amount before trial.
Some personal injury lawyers will try these difficult cases. It is difficult for personal injury lawyers to decide which personal injury cases that really should be tried.
Going to Trial
Sometimes these difficult cases go to trial, and the jury will simply not believe the plaintiff was injured. Oftentimes, when there is a plaintiff’s verdict, the jury will cut damages for medical bills, wage loss and/or pain and suffering. If a plaintiff goes to trial and the result is a defense verdict the plaintiff will, undoubtedly, be on the hook for attorney’s fees and costs incurred by the insurance company in defending the case. This can result in a judgment against a personal-injury victim of tens of thousands of dollars. If there is no offer made to settle a claim, and the plaintiff is judgment-proof, any downside financial risk to the plaintiff can be extinguished in bankruptcy.
Insurance companies always like jury trials over bench trials (trials without a jury). They know that their odds of a defense verdict are greater with a jury than with a bench trial. Once one side requests a jury, the opposing side generally cannot change the case back to a bench trial.
Juror Conduct at Trial
Can a jury really be impartial? There are certain rules that control jury conduct to keep jurors impartial. In a jury trial, the judge instructs jurors prohibiting them from conducting any outside research while they serve on the panel. They are prohibited from discussing their case amongst themselves prior to the close of evidence and the start of deliberations. They are instructed to set aside any prejudice or preconceived notions that could affect the outcome of their decision.
Despite these judicial warnings juror conduct may not be perfect. Jurors are not supposed to communicate with others about the case. In this modern technological age the internet can be accessed by a cell phone. After they leave the courtroom, despite the warnings many will seek access to internet sources and attempt to dig deeper into the case to get information to share with their fellow jurors. Recently on the news a juror in a federal drug case admitted to the judge and he was doing research on the case on the internet. It was also determined that many other jurors were doing the same thing. This resulted in a mistrial. Jurors are not allowed to do their own independent investigations of the case. They are limited in their decision making by only the evidence that is presented during the trial. They can’t be exposed to any evidence which is excluded by the judge, and they can’t have access to any information that can create bias or prejudice toward any party. Some jurors just do not follow these instructions.
The legal system provides for “voir dire.” This is a process by which prospective jurors are questioned about their backgrounds and potential biases and prejudices before being chosen to set on a jury. Personal injury attorneys want jurors who have been involved in car accidents or have had a close family member who has been has been involved in an injury producing not-at- fault car accident. However, it is likely that these jurors will not be selected to serve, because they will be preempted by the defense.
Juries must deal with complex legal issues during their deliberations. They are instructed on the legal issue of proximate cause. This legal concept is confusing to jurors. Lawyers spend many hours in law school studying this legal concept. Proximate cause inquires into the sufficiency of the connection between the defendant’s action in the plaintiff’s injuries. When there is an intervening event between defendant’s negligence and plaintiff’s injuries, the determination of whether defendant’s conduct was a proximate cause of plaintiff injuries turns on whether the intervening event was a foreseeable consequence of the defendant’s negligence. Were there other factors that contributed to the injury? Was there enough force associated with the accident to cause an injury potential? Was the defendant’s negligence continuous up to the time of the injury? How much time elapsed from the negligent act to the injury. Expert witnesses used by both sides in auto accident cases often express opinions concerning causation and proximate cause. It is not unusual in a jury trial to have an expert’s on both sides state diametrically opposed opinions. It is easy to see how jurors can become overwhelmed by all this and loose perspective concerning their job as jurors.
So not every act of negligence combined with the development of injury will result in an plaintiff’s verdict. The defense will always take the position that the injuries were not caused by the subject accident. They will center their defense on delayed symptomatology, pre-existing conditions and lack of injury causing potential.
One of the recent jury reforms is to allow jurors to asked witnesses questions during the trial. This procedure is slowly gaining acceptance throughout our country. In most cases, the jurors to write down their questions and the judge determines the admissibility of the question. The judge will read the question to both counsel and allow them to object. The jury and witnesses are removed from the courtroom during this process.
Juror comprehension is strained by lengthy cases and complex evidence and intricate law. Jurors in these cases can become dissatisfied with their participation and look for an easy decision based upon an insignificant event that occurred at trial that was not commented upon by either side.
A jury’s decision making ability is not always entirely accurate. Once their verdict is entered, the legal system limits procedures to query jurors to determine if they correctly applied the jury instructions to the evidence and honestly deliberated on the case. See, e.g., NRS 50.065. The general rule is that we cannot inquire into their decision making process. Therefore, the decision to take an auto accident case to trial is not easy one. Many juror factors come into play. The plaintiffs need to know what they are getting into with a jury trial, so that they can make an intelligent and informed decision about any settlement offer made on their case.
