October 27, 2016

By: Jonathan J. Russell, Esquire
Drake, Hileman & Davis, P.C.

Some day you may serve as a juror in a personal injury case. You may be shocked to learn that, if you do, certain key information about the case will be withheld from you by law. As a plaintiffs lawyer, there are three things I wish I could tell every juror during trial. But I can’t. Instead, I will share these secrets with you now, before you step into the jury box:

  • Insurance. You will probably never hear the word “insurance” during the trial. That is because lawyers arent allowed to mention “insurance,” and thus the jurors are left to assume that there is none. But in most personal injury cases an invisible insurance company is paying for the defendants legal representation, and will pay any money awarded to the plaintiff.In a car accident case, there is likely insurance because all drivers are legally required to have it. In a “slip and fall” or “dog bite” case, an individual defendant likely has homeowners insurance, and a business defendant likely has general liability insurance.Of course, insurance companies don’t want you to know that they are involved in the case. They fear that, if you knew, you might grant a fair award fully compensating the plaintiff for his or her injury, without regard to the defendants perceived ability to pay.
  • Legitimacy of the Claim. By the time a personal injury case gets to the jury, the case has already cleared three difficult hurdles over a long and arduous journey. Each of these hurdles is an opportunity for the judge to dismiss the case, if it is deemed invalid or frivolous.First, the claim got past the preliminary objections hurdle. At this “pleadings” stage of the case, the defendants lawyer can ask the judge to dismiss the case for failure to state a valid claim. The judge then scrutinizes the pleadings to make sure that the claim has merit.Second, the claim surmounted the summary judgment hurdle. “Summary judgment” can be entered for the defendant before the case goes to trial if the judge decides that the evidence produced during the long “discovery” phase shows the claim isn’t viable.Third, the claim overcame the directed verdict hurdle. After the plaintiffs evidence has been introduced at trial, the defendant can ask the judge to enter judgment for the defendant if the evidence doesn’t sufficiently prove the plaintiffs claim. If this request is granted, the case doesn’t even go to the jury.Accordingly, by the time you, as a juror, are given the case to decide, the case has already survived three challenges to its legitimacy. You can safely assume it is not frivolous
  • How Much Money to Award. Pennsylvania plaintiff attorneys are not allowed to tell jurors how much money will compensate the plaintiff for his or her injuries and losses. Amazingly, it is grounds for mistrial if the plaintiffs lawyer even suggests that a juror ask “How much would I want to be paid if this happened to me?”Courts consider this so called “golden rule argument,” to be unfair. But the “golden rule,” which says, “Do unto others as you would have them do unto you,” is the bedrock of fairness and civilized society. I wish I could tell you to use the “golden rule” when deciding how much to award a personal injury victim.Remember: an award of money, while an imperfect remedy, is the only remedy that the law allowsHowever, the amount of money you award the plaintiff will be reduced by attorney fees (typically a third of the award), costs (about $10,000 in an “average” case), and medical reimbursements. The plaintiff will only receive the “net” award to compensate for his or her losses and pain and suffering. Try to estimate the “net” award, after deductions, and adjust your verdict accordingly. You will want to enter a verdict that is just, fair, and provides compensation that is commensurate with the loss.At Drake, Hileman & Davis, we have been winning cases for your neighbors for more than 30 years. We also try to improve our judicial system by public education (such as this article) and in other ways. If you have ever served as a juror and wondered why certain things did or didn’t happen, or if you have a personal injury claim (that might eventually be decided by a jury), we invite you to contact us.