May 10, 2010

This article is a reflective look at the generalities of our successful trial recoveries. After nearly 20 years of trial work, there are certain statements which I can make regarding this subject with a high degree of comfort about its accuracy.

The first general statement I am confident in making is that the character of the litigants to a case, that is the character of the injured plaintiff and the at-fault defendant, are far more central to the outcome of a trial, than any particular attorney involved in the process.

The second general statement I am confident in making is that, in the area of personal injury, it is far better to have a great plaintiff (the injured victim whom we represent) than a very obviously despicable defendant (the person who caused the injury / person we are suing). The combination of both is ideal. But, given a choice, I would take a great plaintiff every time.

There is a type of case and specifically a type of client, as well as a couple of time-honored rules in the presentation of these cases that I have witnessed time and time again result in great jury awards. So, the question that we will attempt to answer is: What made these clients and their cases winners in front of a jury?

This more than anything makes or breaks a case. A completely truthful plaintiff is ideal. Any untruthful or dishonesty in a plaintiff becomes intensified, even amplified by defense counsel. Furthermore, consider the magnitude of the jury responsibility. The jury is being asked not only to accept as true the story told by the plaintiff, but even more difficult, being asked to award money to that person. This is a tall order, under most any circumstance. To that end, if a jury is given anything that it can process as attacking successfully the plaintiff's character for honesty, regardless of anything else, it is "game, set and match." This trial is over, plaintiff will lose.

That is true, even when the at-fault defendant is proven to be a liar, as well. Perhaps surprising to some, juries are far more concerned about the honesty of an injured plaintiff than as to whether the at-fault defendant is honest. See, in the juror's mind, the defendant may have a character for untruthfulness, BUT, the defendant is not asking for money. The defendant is simply asking for the status quo. The defendant and his lawyer are asking for nothing more from the jury than it to do NOTHING.

Alternatively, the jury perceives, rightfully, that the injured plaintiff is asking for them to affirmatively act to changing the financial circumstances of one of the parties. Often, the jury is under the mistaken illusion that money being awarded to plaintiff is actually coming out of the pocket of the defendant. In actuality, that is nearly never the case. Invariably, the at fault party has insurance, whether it auto insurance, home owners' insurance, or some other kind of insurance that is footing the bill for everything for this at-fault defendant from his attorney's fees to any ultimate award paid to the plaintiff.

The reason why the jury hears nothing about insurance is because there is a Colorado Rule of Evidence that precludes the jury being told about insurance. The rule was designed to keep a plaintiff's attorney from simply persuading a jury to award lots of money, "after all it's just the insurance company's money, anyway." However, the evidence rule as written allows a defense lawyer to act like his client will pay out of pocket any award. Some states, such as Wisconsin, have recognized the confusion that this might create for a jury, and how insurance defense attorneys exploit it, and have changed their evidence rules to allow the jury to be told about insurance. Colorado has not, as of yet, evolved our laws to this point.

As a consequence, some jurors look extra carefully at the plaintiff because they view their job as changing the financial fortunes of both combatants. However, changes in the laws of other states aside, the honesty of our injured plaintiffs is hyper-critical to ANY successful jury outcome.

The jury is often being asked to play the role of a CSI investigator. We show an auto collision. We then show certain injuries at the scene. Next we show follow-up treatment thereafter, and hopefully the absence of anything similar in the plaintiff's past. We then basically hope to look at the jury in closing argument and say something to the effect of, "it makes sense, doesn't it?"

The problem is sometimes it really doesn't seem to make much sense. The crash looks too small, the injuries are not well reported at the scene, treatment follow-up was spotty or there were large gaps in care, and of course perhaps there are other things in plaintiff's past that might better explain these injuries than this crash. Left unchecked, that is a recipe for a jury verdict in favor of the defendant.

Making sense of the accident and the subsequent injuries, if it is possible to do so, is truly the job of a good lawyer. Of course, sometimes, accidents and injuries are simply impossible to coordinate regardless of attorney efforts. However, having time lines to establish treatment before versus after a collision, bringing primary care doctors and therapists in to trial to discuss the plaintiff's prior good health, and including the often overlooked friends, neighbors, and close family to discuss "then versus now", all assist in helping a jury piece together and make sense of the accident and the associated injuries.

This is a sub-category of perceived client honesty, but is often the part that a good attorney can control. You can have a straight-shooting plaintiff, and an injury and accident that make sense and STILL lose the case. What happened? Perhaps, the jury got the feeling that they were being taken for a bit of a ride.

Here are some examples of overreaching: A person who didn't work before an accident gets up and asks for an award to include wage loss. Alternately, a person with a healed broken bone and no supporting evidence of permanent injury, asks the jury to award a large sum of money for their permanent restrictions.

A jury can be completely supportive and willing award a plaintiff a reasonable amount of money then hear a moment of overreaching, and suddenly be completely poisoned against the plaintiff.

I rarely blame an injured plaintiff for overreaching. The job of the attorney is to counsel and if something would look like overreaching it needs to be identified early in a case and if at all possible eliminated as a claim so as to avoid the souring of a jury.

Overreaching by a plaintiff is responsible for far more bad verdicts than bad fact witnesses, insurance company doctors and clever defense attorney cross examination. In other words, we as plaintiff lawyers often bring this one on ourselves. We need to face facts that juries can spot overreaching and will punish the plaintiff every time.

Every case has warts, that is to say, there is no perfect case. Between issues of liability, causation and damages, the defense lawyer will always have something to talk about. And, defense lawyers are awfully good at exploiting the weakness of a particular case.

However, empirically, there is a certain type of individual who by their nature hold up quite well in front of a jury. A truthful, straight-shooter type plaintiff will generally project their honesty. That in turn, will limit the opportunity for defense counsel to suggest untruthfulness in character, and with that we are 3/4th the way across the finish-line.

The remaining 1/4th necessary to a successful jury outcome requires the accident and the associated injuries be presented in a way that makes sense from a cause/ effect standpoint.

And lastly, the award sought has to be reasonably tied to provable losses. The expression pigs get fat and hogs get slaughtered is never more true than in front of a jury. Overreach on damages, rest assured the outcome of the jury verdict will be less than optimal, if not a devastating loss.

At Anderson Hemmat, we have the trial experience to help you avoid these pitfalls and counsel you how best to present your case to a jury. Call us today to discuss your case with one of our trial attorneys.


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