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It is particularly hard coming to the legal system from the outside, to understand how or why your case would ever end up going to trial. So, if we seem more reserved than you about the facts of your claim, or our ability to settle your claim for a fair amount before trial, here are a few things we'd like to share before you step into the courthouse. First, let it be said that our firm is always in favor of letting the jury know the WHOLE truth about a case. For that reason, you will rarely see our lawyers object to the entry of truthful information during trial, even if there may be a legal basis for objecting. But, many court procedures prohibit us from telling the jury very important information that would assist them in making correct decisions on a case. Here are a few things that you should know:
Under no circumstances can we mention the word “insurance” in trial, even though the person who is being sued has insurance. You cannot mention insurance, nor can your witnesses including the doctors, police or anyone else who may testify for you. If you do, the judge will grant a “mistrial” and we will have to try the case over again. Insurance is available in at least 99% of all auto accident cases that go to trial. But, the insurance industry has lobbied the legislature and within the legal system so diligently that it has created a set of court rules that absolutely prohibits you or your lawyer from telling the jury the truth:
Believe it or not, insurance companies have saved billions of dollars since the mid 1990s, by improperly denying claims like yours, and otherwise forcing litigation by paying far below the jury verdict average to settle claims. Frivolous defenses to legitimate claims have resulted in an increase in litigation. Jurors often mention that if your injuries are real, the case should have settled with the insurer. That is the exact sentiment the insurance company is hoping for. It doesn't matter if they offered $500 on a claim worth $500,000; or if their offer didn’t even cover the medical bills. The jury will never know, because you and your lawyer are prohibited from ever mentioning the settlement negotiations during the trial. The insurance industry spend multiple times what a reasonable settlement would be to fight the claim, simply to prove to injured people and their lawyers that filing a claim for injuries is more trouble than it is worth. The end result: most lawyers will not take the cases, and people will not file the claims themselves. As a result, injured people are left with exorbitant medical bills (unpaid by insurance), which lead to a greater number of personal bankruptcies in the United States. When someone runs a red light or improperly turns into traffic, causing a collision, he/she may approach you saying, “I’m sorry, it was my fault.” Taking responsibility at the scene of the crash doesn’t necessarily mean that they will fess up to it at trial. Some defendants change their story on the witness stand in an attempt to escape personal responsibility for their driving conduct. Unfortunately, the legal system will not allow your lawyer to introduce evidence of the defendant’s admission of fault -- if the defendant contests the admission at a later time. And you will not be able to testify to the fact that the defendant admitted fault. Too often the jury goes into deliberations incorrectly thinking that there was some dispute about who was at fault on the day of the collision. SCIENTIFIC FACT: There is no connection between little vehicle damage and occupant damage. In reality, some of the most significant injuries to passengers occur in cars where the automotive damage is small. Jurors can be misled by the defense to believe that you were not injured, if pictures show little vehicle damages. However, we require that your medical doctors and treating providers provide honest, scientific-study backed evidence of your injuries – otherwise, we wouldn’t be at trial! It is also a scientific fact that there is no minimum force at which injuries are known to occur. "It is well established that there is no connection between delta V and injury risk. In fact one study showed that chronic injury rates at delta V’s of 5-10 km/h were twice that of 10-15 km/h. M. Kraft, et al., How crash severity in rear impacts influences short- and long-term consequences to the neck, ACCID. ANAL. PREV., 32(2): 187-95 (2000). A peer reviewed author has looked at connective tissue trauma injuries (permanently torn ligaments) in a large epidemiologic study where several hundred patients who sought specialist care for a rear-end crash were compared to several thousand people not exposed to such a crash. Seven years after the crash, there was a 160% - 370% increased risk for headache, thoracic and low back pain, as well as fatigue, sleep disturbances and ill health. A. Berglund, et al., The association between exposure to a rear-end collision and future health complaints, J. CLIN. EPIDEMIOL., 54(8): 851-6 (2001). The same type of investigation found a three fold increase risk for neck and shoulder pain seven years after a rear-end crash exposure. A. Berglund, et al., The association between exposure to a rear-end collision and future neck or shoulder pain: a cohort study, J. CLIN. EPIDEMIOL., 53(11): 1089-94 (2000). Soft tissue/ whiplash injuries are considered by the medical community as serious injuries. A peer reviewed medical journal authored a report conducted by a group of medical doctors upon a group of car collision victims and monitored their progress for 15.5 years after a car crash. At 15.5 year mark, 70% of those patients continued to report symptoms related to the crash. Between years 10 and 15.5, 18% had improved, while 28% had worsened and 54% had stayed the same. B. Squires, M.F. Gargan and G.C. Bannister, Soft-tissue injuries of the cervical spine. 15-year follow-up, J. BONE JOINT SURG. BR., 78(6): 955-7 (1996). Consider the reputable peer reviewed journal article Eur Spine Journale, January 2004 Vol. 13, pp 61 - 68, Injury of the anterior longitudinal ligament during whiplash simulation, by P.C. Ivancic, A.M. Pearson. M. M. Panjabi, S. Ito. Here, the study reveals that 3.5 g trauma caused injury, which is a low impact. Inertial injuries often occur in the absence of vehicle damage. Despite this, a full scale insurance campaign has occurred since the 1990s to condition the public that less than $1000 in vehicle damages = no injury. This campaign is sometimes referred to as “MIST” (Minor Impact Soft Tissue). Insurers count on that conditioning, and paid experts to refute injuries in these collisions. After being injured in a crash, you should be focusing your attention on getting better – not fighting the insurance company for reimbursement of medical bills. Yet, this is too often the case. MEDICAL INSURANCE WILL NOT PAY THE BILLS; IT IS SOLELY THE RESPONSIBILITY OF THE AUTO INSURANCE COMPANY. We expect that our clients get the appropriate medical attention for their injuries, and that they continue treatment if prescribed by their doctors. We will only take cases that have solid, medically-defined and outlined treatment – and expect that our clients will continue treatment for the medically-prescribed duration. Yet, many times injured people will stop treating when they run out of money. It makes sense – you are out of pocket thousands of dollars, and are not sure how you will ever pay it back. Yet, the defense will try to poke holes in this during trial – you will face the humiliation of discussing your financial situation that prohibits you from getting all of the necessary treatment now and in the future. There are a handful of defense-employed doctors making hundreds of thousands of dollars per year, providing reports which claim injured people, like you, didn’t sustain the injuries. These defense-paid doctors deprive injured people of their insurance benefits under their own insurance policy. Insurers then use these same doctors to refute your injuries in front of the jury, claiming that you were never injured in the collision, or that an minor accident 25-30 years ago is now troublesome. Just wait and you will see it happen, either during the Independent Medical Examination your insurance company will require you to attend (or they will terminate payments for your treatment), during trial, or both. The Golden Rule requires that we, as trial lawyers, cannot ask the jury to put themselves in the position of the injured person when valuing the case. This Rule emotionally insulates jury members, who should be able to interject personal perspectives on how your injuries would affect their own lives. If the jurors don’t feel the loss personally, they won't find as much value in the human harms and physical losses sustained by the plaintiff. In every case, we make every effort to select a jury of intelligent and caring people who will fully appreciate the significance of the human losses you have sustained. Often times, jurors will think that you already received money from some other source, and that you are just looking for more. Other jurors think that if the trial doesn’t go well, you can come back again for money later. Neither is true. There is only one opportunity to get all of the money for the past and future medical problems caused by the collision, and that is the trial. If the jury provides nothing, you get nothing. You only get one bite of the apple – your day in court. When juries speak, companies listen: Because of verdicts that included punitive damages, children's pajamas are no longer flammable, medical devices and auto fuel systems have been redesigned, and farm equipment and factory machinery include safety guards. Almost all of the big money cases are business cases, not cases involving auto collisions. But, as insurers have conditioned the public to believe that auto collision jury verdicts are “out of control”, jury verdicts have fallen to their lowest point in 30 years. Insurance rates keep going up – even though jury verdicts have fallen. What does this mean? Insurance companies don’t have to pay out the money that they are taking from their policyholders, resulting in record profits and bonuses for their executives. First, it is very rare that the defendant will ever lose any of his/her own money. As discussed above, over 99% of all defendants have insurance in our cases, yet this fact can’t be mentioned in court. The insurance company (NOT the defendant) will ultimately pay the judgment. Yet, the insurance company ensures the appearance that the money is coming directly from the defendant – so that juries will give less. Now to trial lawyers and money. Most often, we spend our own money to finance an injured person’s case, because the injury prevents he/she from having the money to fight the legal battle against an insurance company. We have spent hundreds of thousands of dollars of our own money to finance clients’ cases, with absolutely no guarantee that we will ever get the money back. We don’t get paid one cent, unless we recover money for you. The media and political hype about “runaway juries” and million dollar verdicts is false. The truth is: Jury verdicts are down. Lawsuit numbers are down Tort filings in state courts have declined by 9 percent since 1992, according to the NationalCenter for State Courts (NCSC). The truth is, only 2 percent of Americans file lawsuits, according to the Rand Institute for Civil Justice. In state courts, only 5 percent of the tort cases filed go to trial. The McDonald's coffee case and others that have drawn media attention have distorted the public perception of the legal system, giving people the impression that huge sums are commonly awarded for questionable wrongs. As you will see at trial, 80% of most jury pools will raise their hand when asked if the McDonald’s coffee case will pose a problem for them in deciding your case. The media twisted this story into something it simply is not. And the woman who spilled the McDonald's coffee? She was 79, in the passenger seat of a stopped car, and the coffee scalded her so badly that she suffered third-degree burns and needed skin grafts. During discovery, McDonald's produced documents showing more than 700 claims from people burned by its coffee between 1982 and 1992. Stella Leibeck’s case really never would have gone anywhere though, had it not been for the fact that McDonald’s refused to pay for Leibeck’s medical bills caused by the burns. She only asked for her medical bills paid (and $0 for her other injuries), but McDonald’s refused. She had no choice but to sue. When the jury found out McDonald’s decision to keep the coffee at a temperature so hot they knew it would injure people, they returned a verdict equal to two days of McDonald’s profits on coffee. Not two years; two days. But, McDonald’s wouldn’t pay that either. They appealed the case, and eventually settled the case for a much smaller amount of money. But, that doesn’t matter. The only message conveyed to the public was that a woman had successfully sued McDonald’s for millions because she spilled coffee on herself. |
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