Tuesday, September 2, 2008

Will the real defendant please stand up.

In nearly every trial of mine, particularly where the plaintiff is seriously injured, I see the same look when I glance at the jury. I see it in their eyes, and read it on their faces: the look of concern. I see it not only when the look at my client, but also when they look at the defendant. The look, I have learned in speaking with jurors after trial, stems from their concern over the perceived financial difficulty a verdict may cause the defendant. This is only natural. Juries are comprised of good people - our families, friends, neighbors, and coworkers. Defendants are often good people as well, though they made a mistake that happened to injure someone else. I certainly don't blame jurors for caring about both parties in the case.

Unfortunately, during trial, the plaintiff's attorney is not allowed to talk about the fact that while the defendant is named individually in the lawsuit, the defendant carries insurance that will pay the verdict. This is true even though the insurance company is not named as a defendant. In the event that the verdict returned is larger than the insurance policy involved, the insurance company will often pay in excess of the policy. Otherwise, the defendant will likely have a claim against said insurance company for refusing to settle the case early on. Either way, the insurance company will likely end up paying the verdict.

Sadly, hiding the fact that the defendant is insured can serve to subconsciously undermine the fair evaluation of damages of the plaintiff. It is also unfortunate in the sense that the real entity driving the ship is not the defendant, but his or her insurance company. The insurance company hires the defense lawyer (most are either in house defense attorneys, or on contract with that particular carrier), determines the course of litigation, and determines the course of settlement negotiations. A defendant can wish with all her might that the case settle, and even want to offer an amount to settle the case. However, they are chained to the decisions of the insurance company, and must bow to the insurance company's whim. Doing otherwise will be considered a violation of the cooperation clause of their insurance contract, the insurance company will withdraw coverage, and the defendant will be left in the cold.

Most plaintiff attorneys truly wish they could tell the jury about the insurance available, as they know that concern for the defendant's financial well being is all but inevitable. However, the insurance industry has made that nearly impossible, as it has backed rules prohibiting such evidence.

In any case, no attorney worth their salt would file a case against a defendant that didn't have either 1) insurance , or 2) significant assets that would cover the verdict. Without either of those, a defendant could easily avoid paying the verdict by declaring bankruptcy. The plaintiff would be left with nothing, the attorney would not be paid, and many thousands of dollars would be lost in the costs of the case.

We only wish we could let the jury in on all of the facts, including the fact that the defendant is insured. However, we are not allowed. Thus, we soldier on, knowing that the playing field is slanted against us for this and many other reasons. However, the rules are set, and we intend to play fair. We will continue to fight the good fight and do right by our clients.

-Tim Williams

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