Juries in personal injury trials must decide if a person is liable for causing a car wreck and how much he or she should pay in damages.
To make that decision, jurors are given all the relevant facts, right?
No, not always.
As a personal injury lawyer for the past 36 years, it surprises me to think how rigged the system is (to use a phrase you hear a lot these days) against the injured victim.
The following is withheld from the jury panel:
That the at fault driver is covered by liability insurance
Texas trial rules prevent trial lawyers from introducing evidence that the defendant is covered by car insurance. Actually, liability insurance cannot be mentioned during the trial due to the prohibition in Texas Rule of Evidence 411 and many mistrials have resulted when this has happened.
So the jury assumes the poor little defendant — not State Farm Insurance Group with its astonishing $82.7 billion in net worth — has to pay for the plaintiff’s medical bills, lost wages, disfigurement, pain and suffering, and other damages himself. But he doesn’t, and this rule creates an obvious bias in favor of the at-fault party.
That the defendant caused the crash
Important parts of the report — or least the police officer’s opinion as to how it happened — are often not admitted into evidence. Of course, the officer rarely sees the collision happen and his testimony is limited by Rule 602. In addition, his opinion can be based on what the sometimes unreliable drivers and eyewitnesses told him and can be excluded by the hearsay rule, Rule 802. Further the officer may not qualify as an expert who can render expert opinions under Rule 702.
I’ve been in court when the officer testified from his report which found that my client was at fault. Why? The plaintiff had already been rushed to the emergency room by ambulance by the time the officer arrived so the officer only heard one side of the story. In that case, I have made sure the police report was not admitted into evidence, that the officer was thoroughly cross-examined, and that the jury heard my client’s and eyewitnesses’s testimony that the defendant caused the collision.
Whether the injured person had health insurance
Usually the jury is not allowed to know if the plaintiff was covered by CIGNA, Blue Cross Blue Shield, or Medicare — or whether he has to pay all of the medical bills himself. But jurors know that most people probably have health insurance. What they aren’t told is whether the plan actually paid all of the plaintiff’s medical bills, some of them, none of them, or paid some but will get repaid from the verdict or settlement. Or the jury doesn’t know how much the plaintiff had to pay for his deductibles and copays. Or how badly his credit has been affected when the at-fault driver’s insurance company refused to pay the claim timely or at all.
Under new filing requirements instituted several years ago, required court affidavits have been amended so that they itemize which bills were paid by health insurance, which were written off, which were paid by the plaintiff, and which are still outstanding. Texas Civil Practices & Remedies Code, Section 41.0105. However, there can be a lot of confusion categorizing this by medical providers, injured persons, insurance companies, attorneys, and the courts.
4. That the lawyer representing the at-fault driver works for his insurance company, not him
State Farm, Allstate, Farmers, Liberty Mutual and other major liability companies have entire law firms here in Dallas-Fort Worth who do nothing except defend their insured drivers. When you are in a wreck and sue the other driver, “his” attorney defends him in court. This same poor little defendant who the jury doesn’t ever get to find out is covered by insurance usually has a good lawyer from Dallas paid for in advance.
But you can be sure that the lawyer is more concerned with the financial interests of his real employer. Talking about a conflict of interest. But that fact also does not have to be disclosed to the jury.
There are many other examples where Texas juries are kept in the dark.
Oh, that evidence book in the photo that looks so old IS old — I just checked and I got it back in 1983.