Serving up tort

Top 10 myths about personal-injury lawsuits

Richard J. Crawford

Published November 25, 2006 at midnight

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• Civil juries are usually pretty fair to both sides. I suppose that if the plaintiff and defense lawyers had enough time and latitude for a truly fair jury selection procedure, those who are unfair could be removed, leaving a pretty impartial jury. However, the time and latitude given for jury selection has continued to shrink to the point where such a really fair jury is less likely to be seated today.

Furthermore, the past two decades have seen a shift among American jurors toward a belief that most plaintiff cases are undeserving and that voting for the defense promotes some sort of justice. The result is that in civil trials it is often difficult for a plaintiff lawyer to end up with a jury receptive enough to their case to get the award, which the case may justify.

• Malpractice lawsuits are driving good doctors out of the profession. While it is true that malpractice insurance premiums continue to rise, most of the data indicate that insurance carriers are at fault, not lawsuits against doctors and hospitals. Some studies indicate that malpractice insurance has gone up 20 times as fast as malpractice awards.

In fact, jury malpractice awards have remained relatively flat over the past several years.

• The jury makes the final award. The award arrived on by the jury is not final until the trial judge says it is. In fact, judges can modify the award amount as they see fit, and they often do just that.

• Jurors wait until all the evidence is in before they make up their minds. No, and the studies on this are pretty conclusive. Jurors listen to the early case summaries from the judge and the opening statements from the lawyers and get a pretty clear idea as to which side of the case makes more sense to them.

They may drift back and forth during the trial, but their early impressions about the case usually carry them all the way to a final verdict. It is simply a reality that most cases are well on their way to being won or lost during the very early stages of a trial.

• You can just about sue anybody for any reason. Actually, if you have some money you don't need and can find a lawyer to file a lawsuit, you can do that for almost any reason. However, the kicker is that a judge can dismiss or throw out your lawsuit if he or she does not see merit in your case and you will only have helped pay a few house payments for your lawyer.

To be sure, there are questionable lawyers who file frivolous lawsuits against businesses or corporations knowing that it may be cheaper for the defendant to settle than to fight it long enough to have it thrown out by a judge or even a jury verdict.

• You need a lot of money to launch a major civil lawsuit. Not really. If your case is a good one and the economic and other kinds of damages you have sustained are truly considerable, you can pretty much get a free pass through our contingency system. That is, your lawyer will spend the time and money to get your case to trial and the rest in return for a percentage of the final award you receive from the jury.

It may take many years before you see a dime, but if everything else is right, you could end up with a nice check at the end, and your lawyer will essentially have fronted the cost for his or her percentage of the final award.

Of course, there are levels of complexities in the contract you have with your lawyers related to how and when expenses are paid and much more.

The other variable is that a small law firm can sometimes find it impossible to afford to stand up to gigantic corporations who can extend the time and cost leading up to trial, forcing an early and unsatisfactory settlement.

• The civil lawsuit system is broken and does more harm than good. Although there are many abuses of and problems in this system, the civil lawsuit still serves us well. We need to remember that great harm is done to individuals by negligent manufacturers, businesses, drug companies, medical doctors and others that the government just cannot police. The fact that an injured person can hire a lawyer to hold such entities accountable for their negligence serves as a deterrent to those who would be careless with individual lives and their properties.

• The tort reform movement has improved the system. This movement has resulted in a sharp reduction in the power of the American jury, but that can hardly be viewed as an improvement in our system. However, there are two distinct groups that continue to debate this issue.

Consumer-rights groups and the plaintiff bar have consistently argued that we should trust the American jury to do the right thing once they have heard all of the evidence.

Assume, for example, that a manufacturer has been extremely negligent in manufacturing and selling a product that has cost persons their limbs or even lives. Those with this consumer perspective maintain that an American jury will listen to all of the evidence and use their life experiences to decide what amount of money should be awarded to a victim and what amount of money would be appropriate to serve as a deterrent to other manufacturers who might also be careless or negligent.

The second group in this debate represents the tort reform movement, which has mostly been financed by large insurance companies and corporations. This group continues to argue that juries are too easily swayed and that there should be laws passed to limit the amount of money juries can award and other laws instituted to insulate certain entities (like the ski industry in Colorado, for example) from the danger of huge awards from a jury.

The legislatures in many states have been influenced by this second side, and the tort reform movement has primarily succeeded in reducing the ability of juries to decide what is a just verdict.

• Personal injury lawsuits are decided on the basis of sympathy and emotion. Twenty or thirty years ago, juror sympathy and emotion were pretty significant factors in how personal injury lawsuits were decided, especially the award amount.

However, television and a much more enlightened population have combined to make this less true today, if at all.

Jurors who award large sums of money to a victim today must first be convinced that the negligence was severe before they consider any award. Yes, when a jury has become convinced that a given defendant knowingly engaged in behavior that resulted in serious harm to individuals, such jurors then often award a commensurate dollar amount.

But the analysis of how much money should be awarded is related to the seriousness of the injury and the depth of the negligence, once it has been proved in court.

• Jurors deliberate in the classic sense until the final decision is reached. During the early deliberations of a jury, most foremen take a straw vote as to where the jury is in its thinking on the case. Once there is a clear majority known by all on the jury, the pattern is pretty consistent.

The majority attempts to get the minority to give in a go-along with the majority. Although there are exceptions, roughly 90 percent of the time the majority convinces the minority to go along with them for the final verdict.

Richard J. Crawford is a former communications professor who specialized in the study of the American jury at the University of Northern Colorado and the University of Colorado. He was a founder and past national president of the American Society of Trial Consultants and is the co-author of a new book for trial lawyers. "The Persuasive Edge." In the early 1990s, he was a full-time trial consultant with Holland & Hart.

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