May 9, 2013

If you are injured in a car accident, the road to trial can seem long and arduous. Nevertheless, the first thing I tell my clients when we come to the realization that their cases will not settle is to not worry. Going to trial is not so bad and oftentimes results in exceptional outcomes for my clients. Lately, our firm has been blessed with a string of great trial outcomes.

Nevertheless, as you often hear in television commercials, previous results are no guarantee of future performance. Anything can happen at trial. For all plaintiffs nationwide who end up with great verdicts, there are many more who do not achieve the verdicts they desire.

I expect that my clients will read this article after the final effort to settle their cases fails and they now face the reality that their cases are going to trial. I hope this article serves as an uplifting and positive read that helps my clients realize that going to trial, while perhaps intimidating and nerve wracking for them, can be a healing and positive experience. At the same time, I wrote this article because I believe that lawyers do not always do good job of answering their clients' questions about the process of going to trial.

In no particular order, my article will discuss the details that I want my clients to understand about trials.

A) Lawyers Love Trials, So We Are By No Means Reluctant to Try Your Case:
For good lawyers, a trial is the culmination of years of dedication and hard work. Simply said, it's "the show." A trial can be energizing because we as trial lawyers do not get many opportunities to try cases. Most cases settle. Statistically, 99% of nationwide personal injury cases settle before trial. So, if your case is heading to trial, you are already one out of a hundred.

In the run up to trial, your lawyer might not get the chance to tell you that he is having the time of his life, but he probably is. But, for the client, this can be a reluctant and nervous time. However, clients should remember that they have the advantage of a trial lawyer working towards a showdown that he or she has trained a whole career to undertake. Furthermore, consider that during the run up to your trial, your lawyer is probably focusing all of his or her efforts solely on your case.

So, you should relax because your lawyer is enjoying himself. We all know that people who enjoy their jobs are more productive and efficient. While not every trial works out for plaintiffs—and there is always a winner and a loser—the fact that your lawyer is working hard for you should make you feel more comfortable about the process.

B) There Is A Big Difference Between Winning And WINNING:
In a personal injury case, the trial requires the plaintiff to overcome two obstacles. First, you must convince a jury that you have the right to be there. You and your lawyer must put on enough evidence to convince a jury that you were right, and the defendant through his or her negligent driving or injurious conduct, was wrong. In this regard, we are much like prosecutors in a criminal case. We overcome this first obstacle if we convince the jury that the defendant was at-fault or negligent.

However, what makes my job as a civil trial lawyer much harder than a criminal prosecutor is the second obstacle that prosecutor's never have to overcome. The second obstacle for a trial lawyer representing an injured victim is to convince the jury to award my client the necessary amount of money to compensate my client for the losses he or she suffered as a result of the defendant's wrongful conduct. Studies show that a juror's initial instinct is to not award too much money for injuries in a trial verdict. Consequently, once a jury is convinced that a plaintiff should be compensated for his losses, many juries still do not award plaintiffs sufficient money to compensate them for their injuries.

Please do not take offense or misunderstand my point. Jury service is hard. Jurors have the best of intentions, but when it comes to the adequate award of money to compensate very injured and even disabled people, jurors seem to miss the mark. In other words, a jury oftentimes will focus great effort on determining fault, but little time on actually determining fair compensation for the loss. So, even if you win the battle by convincing the jury that the defendant was in the wrong, you can still lose the war if the jury does not award you an amount sufficient to compensate you for your losses.

C. The Jury Is A Committee:
Another point of stress for clients comes from understanding that their future and their immediate well-being will be decided by a jury comprised of people from their community.

It is said that a camel is a horse built by committee. Notably, a jury is a committee with different personalities and unpredictable dynamics. Under Colorado law, a jury is required to vote and unanimously agree on who caused the injury and what amount of money, if any, should be awarded to the plaintiff.

A wise attorney realizes that he or she does not directly achieve large jury verdicts. Instead, an attorney arms jurors sympathetic to the plaintiff with arguments and motivation to fight for the plaintiff during deliberations. It is during deliberations that sympathetic jurors rally to gain the support of other jurors to deliver a great verdict for the plaintiff.

Accordingly, in jury cases, it is very important to select people to serve on the jury who are sympathetic to my client. In the jury selection process, attorneys need to keep people on the jury who we feel like our clients and who can at least tolerate us personal injury attorneys.

In Colorado, jury selection is not a selection process at all. Instead, it is a de-selection process. Each side is given an equal number of strikes that they can use to knock prospective jurors off to eventually reach a final body that decides the case. Oftentimes, a room full of prospective jurors is reduced to six or seven jurors. During this process, I need my client's help. I listen to my clients during jury selection because it is important for my clients to provide input as to the people on the panel they like or dislike. Most individuals know the demographics of people they identify with or who identify with them. You know the type of people who generally like or dislike you. I tap into that knowledge.

D) The Only Certainty About Trials Is Its Uncertainty:
The only sure thing about trials is that they involve mounds of uncertainty. In fact, there is rarely any certainty as to any aspect of trial. Nearly nothing is predictable or ends up coming off as scripted. Not surprisingly, judges will even tell you that they are often completely surprised by the results of a trial. As discussed below, the trial process lends itself to uncertainty.

1) Pre-Trial Rulings:
In every case I take to trial, I make a list of all the things I do not want the opposition bringing up about my case or my client at trial. I also look for strengths in the defendant's case that I feel there is a legal basis to keep out of evidence. I then conduct legal research and file motions with the court to convince the judge to prevent the defense from introducing negative/harmful facts about my client and to preclude them from introducing arguments that help the defendant's case. While I am filing these pretrial motions, the defense attorneys are doing the same thing.

Usually these matters are not resolved until the first day of trial when the judge makes her rulings on these various motions. Cases often change complexion on the first day of trial as the judge determines what evidence the combatants will be permitted to tell the jury about during trial. Consequently, my clients need to be malleable and have to understand that their cases may sound different and foreign by the time their stories are being told to the jury due to these rulings by the judge.

2) Jury Selection:
The jury selection process begins with voir dire. This is French for "to speak the truth." Voir dire is the only time in the case where lawyers get the opportunity to ask prospective jurors questions about their lives and their opinions.

The different personalities and characters who show up for jury duty affects how the process unfolds and what type of jury is ultimately selected. Sometimes, it seems like the jury is extremely apathetic and that they are programmed to answer all of my questions with one or two word responses. In those cases, I end up feeling like the jury just wants to go home and has no particular interest in my client. Other times, I find myself in a situation where the jury panel is very engaged, has lots of questions, and wants to be a part of the selected jury.

3) Witness Testimony:
Long before trial in a civil case, lawyers usually take depositions of at least the parties, and usually, various witnesses and/or medical providers as well. A deposition is part of the discovery process. A lawyer gets to ask questions of the witness under oath. This oath is the same oath the witness would take at trial. The purpose of the deposition is to find out what the witness' testimony would be at trial.

It is very useful in helping evaluate the evidence that a jury would hear, and thus, the merits of the case. But the reality is that witnesses many times reverse their positions or testify extremely differently than what they said months earlier in their deposition. When this happens, a good trial lawyer starts to salivate. I know that the rules allow me to confront the witness with their prior deposition testimony and alert the jury that the witness said something different when they were asked the same question months earlier in their deposition.

But what do jurors do when they see a contradiction in a witness' prior testimony? Well, it depends. As personal injury lawyers, we usually assume that a witness reversing their position is highly damaging because it shows the witness is being deceptive. But the reality is that sometimes people just get confused or nervous. Juries sometimes forgive small discrepancies. I once heard of a witness, a friend of the plaintiff, who was called to testify as to how the injury had affected the plaintiff's life. The next day this witness informed the court that she wanted to recant her testimony. To this day, I have no idea why the witness changed her testimony.

My point is that you really never know exactly what testimony will end up coming into evidence, and this adds yet another layer of uncertainty to the process.

On the rare occasion where you do obtain a substantially higher verdict than either side was expecting, chances are high that the insurance company will find some reason to appeal. To have a viable appeal, the insurance company needs to have a credible argument that the judge made some kind of mistake—for instance, the judge let certain things into evidence that should not have been allowed.

Trust me, insurance companies hire very expensive lawyers to pour over the trial record and cobble together some reason for an appeal. When this happens, you could be waiting several years before your case works its way through our appellate courts. Depending on the issue, if you lose the appeal, you have to endure another trial. Other times, the verdict gets taken away completely. The good news is that if you win the appeal, you get paid interest on that verdict during the entire time the case was pending on appeal. Obviously, appeals add another layer of uncertainty to the trial process.

At Anderson Hemmat, we understand that trials are not for everyone. Many times, a reasonable agreement can be reached without the need for a trial. But sometimes, a trial is the only way to get justice. We love trials and will bring our many years of personal injury experience into the courtroom should you decide to go to trial. Trial is war. We are battle-tested and have the experience to navigate the uncertainty of the trial process.


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