Common Misconceptions And Myths About Personal Injury Cases

Most people are very surprised to learn about certain facts and procedures that occur in our legal system, and that are very common in personal injury claims.

First of all, a jury will never know if the defendant has insurance coverage and if so, how much coverage exists. The attorneys and judge are prohibited from even mentioning whether a party is insured, and if they do, a mistrial will typically occur.

Practically speaking, if a case is filed in court, or if a trial does occur, the defendant will always have insurance (unless the defendant is so wealthy that they are considered self-insured). A plaintiff's lawyer will not devote 100 or more hours to pursue a claim unless there is a guaranteed source of recovery (i.e., an insurance policy to pay a verdict). If you find yourself on a jury in a civil case, rest assured the defendant will have the means to pay any verdict that is handed down.

Defendant's Role in Personal Injury Litigation

The defendant's insurance company hires the lawyer, decides when to settle, and pretty much makes all of the decisions when a case is in litigation. Most of the time a defendant has little, if any, say about how the case is defended or if a settlement should occur. Decisions about whether to settle, if by how much, are always made by the insurance carrier.

Filing a lawsuit does not mean your case will be heard by a jury. Most personal injury lawyers would rather have a judge decide the case instead of a jury. This is because too many jurors are highly suspicious and skeptical of injured plaintiffs, and often refuse to give money for legitimate injuries based on a variety of reasons. To have your case resolved by a jury, you must file a specific document with the court and pay a $250 jury fee. If the plaintiff or defendant fails to file a jury demand, then the judge will hear and decide the case (unless the case settles).

In more than 90-95% of personal injury lawsuits, it is the defendant - or more precisely, the defendant's insurance company - that requests a jury. Why is this true? Because juries will typically award less money (and sometimes no money at all) in personal injury cases than the judge will award.

Understanding the 'Runaway Jury Awards' Myth

Insurance companies are fully aware of the statistics that show a jury will typically award much less money to an injured plaintiff than an experienced judge, especially in certain types of claims, like medical malpractice, soft tissue injuries, and other cases which may be difficult to prove.

In most medical malpractice lawsuits (at least 90-95% of cases), it is the doctor's defense attorney that files the Jury Demand and pays the required jury fee of $250. Doctors complain of "runaway jury awards," yet the doctors' attorneys routinely ask that the cases against them be heard by a jury.

Most plaintiff's attorneys will try to resolve smaller injury claims (less than $50,000) through settlement negotiations or by court-ordered arbitration. A program known as mandatory arbitration allows the court to appoint a retired judge or experienced attorney (someone who is approved by the court) to decide the case in an expedient and cost effective manner, as an alternative to going to trial in court.

You can appeal an arbitration award by requesting that the case be tried in court. However, if the party who appeals the award fails to do better at trial, that party will have to pay the non-appealing party's attorney fees and costs.

Appeals Make The Process Even Longer

The defendant, or their insurance company, appeals more than 90% of the cases that go to arbitration. That means that most lawsuits aren't frivolous, as they're being forced to court by the insurance company's appeal. Most personal injury claims are valid and companies just don't want to be responsible for their actions.

Most plaintiff attorneys will rarely appeal an arbitration award because it creates a significant risk that the individual client may have to pay for the defendant's insurance defense costs.

If an arbitration award is appealed and goes to trial, the jury will never be told that the case was first resolved by arbitration. And of course, the jury will never be told the amount of the arbitrator's award. The jury is then left with the impression that the plaintiff and his/her attorney has forced them to come to court to decide a small case that should have been settled. 

Often times, the jury will resent a plaintiff in a small car accident case, for example, believing that the victim is "litigation crazy" and then award the plaintiff a very small percentage of what would be considered a fair verdict (or sometimes nothing at all as payback for filing a lawsuit in such a small case).