From my experience as a trial attorney, I have found Colorado juries to be fair, and even, dare I say, compassionate. Generally, I find it relatively easy to get juries to agree that my clients were injured and should be compensated for their injuries. Furthermore, I am one of those rare trial attorneys who truly believes that our fine Colorado juries nearly always come to the correct decision even though court rules limit the evidence that we attorneys are allowed to present to the jury. Personal injury cases are won before Colorado juries all the time even though those juries never hear the whole story. Accordingly, this article is about the legal limitations placed on what jurors get to know and what they get to consider in making the final decision in your case including if you win, and if so, how much do you win?
The judge at trial is like a referee in a basketball game. Her job, like a referee, is to make sure the players are playing by a set of rules that supposedly makes things fair to both sides. To facilitate fairness, the courts have created certain rules that limit or exclude certain kinds of evidence from being heard by juries. The idea behind these rules is that certain types of information should not be heard by juries because judges believe that the information might overly inflame or influence the jury as they examine the relevant evidence that they should consider in coming to a verdict.
In general, a jury will be able to consider the details of an accident (how it happened), causation (what caused it to happen), and damages caused by the accident (pain, permanent physical impairment, and out -of-pocket economic losses). When juries hear testimony and see evidence in a trial to ultimately decide who wins and how much money they get, the judge limits what is presented to a jury. The idea is that while the jury does not get to hear the whole story at trial, they get to see and hear the "relevant" parts of the story that are necessary to come to a verdict.
When speaking with clients about their upcoming trials, there is a moment when both clarity, and to a lesser extent, fear and disbelief sets in when they hear about all the things that the selected jurors WON'T get to hear in awarding just compensation for their injuries. Those clients start to realize that many of the things they thought were going to be the "keys to victory" at trial are almost always the types of information that evidence rules prevent juries from hearing or seeing. Feel better about the process now? Don't worry, your trial is probably going to work out just fine. The following is a sample of the questions I answer for clients during that often shocking conversation.
Question #1: CAN WE TELL THE JURY THAT THE AT-FAULT DRIVER HAD INSURANCE, THAT THE LAWYER DEFENDING HIM IS BEING PAID BY THE INSURANCE COMPANY, AND THAT ANYTHING THE JURY AWARDS HERE WILL SIMPLY BE PAID BY THE INSURANCE COMPANY?
Answer: No. Rule 411 of the Colorado Rules of Evidence specifically prevents the jury from being told any of this. In fact, in Colorado, the lawsuit you file is NOT against the insurance company at all. Instead, your lawsuit will only name the at-fault party as the defendant. This makes it APPEAR as if you are going to take money from the poor old lady who accidentally rear-ended you.
The main reason personal injury cases go to trial is because of breakdowns in negotiations between injured folks and adjusters from the at-fault driver's insurance company. The at-fault driver usually has nothing to do whatsoever with these negotiations. Nonetheless, according to the Colorado Rules of Evidence, when we sue, we must bring the claim against the at-fault driver, not their insurance provider. This is an attempt by the rules to hide from the jury that an insurance company is involved in the case. In actuality, the whole trial becomes an exercise in us trying to get a jury to award money that will be paid entirely by an insurance company without us ever informing the jury of the "I-word."
Oftentimes, insurance defense lawyers exploit this rule so that it provides an unfair advantage for their side. Defense lawyers tell the jury that they "represent Joe Smith (the at-fault driver), and while Mr. Smith agrees he caused the crash, Mr. Smith feels that the amount of money that HE is being asked to pay is exorbitant." Yes, the insurance defense lawyers sometimes get away with distorting the jury's viewpoint by misleading the jury into thinking that the at-fault driver will be counting up loose change out of his couch to pay the verdict.
In our view, the fact that the insurance company will have to pay the verdict should be honestly revealed to the jury. However, the courts have reasoned that if a jury is told that the insurance company, and not the at-fault driver, will pay the verdict, the juries might award exorbitantly higher verdicts out of disregard or dislike for insurance companies.
In a typical trial, there is only one time where if the jury is listening carefully, they will learn that the insurance company IS paying the defendant's judgment. We lawyers and judges call it "the question." It usually happens so quickly that potential jurors don't even retain the information after hearing it. During the jury selection process, the judge will ask during a series of other rapid-fire questions for any jurors to raise their hands if they are an officer, director, shareholder, or employee of ABC Insurance Company. Yes, it comes up that quickly. This clue that the insurance company is going to pay the defendant's judgment goes away even quicker when the judge asks other "raise your hand" questions like "raise your hand if you already served on a jury in the last year."
So, if you are assuming that the jury will know that the insurance company is going to "foot the bill" and pay the jury award, think again. My clients are nearly always surprised to learn that this key informaiton will be hidden from the jury, and many juries deliberate without knowing or understanding this key information.
Question #2: CAN WE TELL THE JURY THAT THE AT-FAULT DRIVER HAS A REALLY BAD PRIOR DRVING RECORD, AND THAT AFTER THIS CRASH HE HAD SEVERAL MORE SPEEDING TICKETS AND OTHER CAR CRASHES?
Answer: No. Rule 404 of the Colorado Rules of Evidence prevents a jury in a typical car crash case from knowing anything about a defendant's prior driving record. Additionally, courts regularly rule that any moving violation or car crash in which a defendant is involved subsequent to the particular crash that brings us to court is irrelevant and cannot be considered either.
Consequently, clients can count on the jury not being told about any prior or subsequent driving offenses by the defendant during the trial. Again, this rule is often exploited by insurance defense lawyers who tell juries things like "my client has never been involved in ANYTHING like this before." Depending on what a jury assumes, the words "anything like this" could ultimately cause the jury to believe that the accident that the defendant caused was a one time blemish on an otherwise pristine driving record. While there are some unique cases where the driving records of defendants can be introduced into evidence, in the great majority of trials, the driving record of the at-fault defendant is never heard by the jury.
So, if you think that the jury is going to be outraged by the defendant's horrible driving record and numerous moving violations prior to your crash, you are going to be surprised to learn that we cannot present this evidence to the jury. In my experience, nearly all of my clients are surprised by how infrequently the jury ever hears this kind of evidence.
Question #3: CAN WE TELL THE JURY THAT WE SUED ONLY AFTER THE INSURANCE COMPANY OFFERED US $500 AND TOLD US TO STICK IT?
Answer: No. Rule 408 of the Colorado Rules of Evidence prevents the jury from hearing about any prior settlement discussions. The idea behind this rule is to encourage settlement discussions between the parties without any concern that what they say in an effort to settle the case will be used against them later on if the case goes to trial. Accordingly, we are not allowed to tell the jury about any offers or any discussions related to settlement negotiations. Consequently, if you think the jury will be outraged by the inadequacy of the pre-trial settlement offers by the insurance company and will award you a large verdict, guess again.
Question #4: CAN WE TELL THE JURY ABOUT THE AT-FAULT DRIVER'S RECKLESS DRIVING THAT CAUSED THE ACCIDENT?
Answer: Theoretically yes, but as a practical matter, no. Rule 402 of the Colorado Rules of Evidence excludes irrelevant information from being introduced to a jury. Of course, that begs the question, what could possibly be more relevant in a car crash trial than how the crash occurred? This is true if the defendant claims that he did nothing wrong to cause the crash. In these cases, the details about how the crash occurred will be introduced to the jury. However, with 20 plus years of trial court experience, I can tell you that in any aggravated case of outrageous driving on the part of a defendant, the insurance defense attorney will smartly admit liability.
Admitting liability means that the defense lawyer can tell the jury "yes, my client admits he was at fault for this accident." What that seemingly harmless statement does is render any details about the crash and the reckless driving of the defendant "irrelevant" by the judge. Surprisingly, this means that no information about the details of the crash will be shared with the jury. In these cases, the jury is routinely told that there was a crash, the parties agree that the defendant caused it, and that the trial will only focus on whether any injuries were caused by the accident, and if so, how much should the plaintiff be compensated for those injuries.
Even when the defendant admits liability, there are some notable exceptions such as drunk driving that allows us to reveal the reckless driving of the defendant to the jury. However, most of the time, anything really reckless that a defendant did behind the wheel to cause or contribute to an accident will be kept from the jury simply because the defendant admits liability, thereby focusing the entire trial on the extent of damages actually caused by the crash.
So, if you think that a jury is going to be outraged by the bone-headed driving of the at-fault defendant and consequently award you a large verdict, you thought wrong. Again, most of my clients with upcoming trials are surprised to learn that juries rarely get to hear about the defendant's reckless driving that caused or contributed to the car crash.
I hope that this article has given you a better understanding of the legal limitations placed on what jurors get to know and what they get to consider when they are deciding on a verdict in a car crash injury case. Nevertheless, at Anderson, Hemmat & McQuinn, we are not afraid to go to trial and have found that even though juries do not get to hear the "whole story," Colorado juries are fair, compassionate, and nearly always "get it right" with respect to the verdicts they award.