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Ensuring a Fair Trial

By Michael S. Rothrock

I make a concerted effort to speak with as many jurors as possible after a trial. The information gained from these conversations allows us to learn more about what arguments work and do not work, what evidence is most persuasive, what evidence they want to see more or less of, how the jurors arrive at their decisions, and a wealth of other valuable information. I find that many jurors are actually quite eager to answer questions as it gives them an opportunity to discover more about “what really happened” and to ask their own questions.

Often, one or more jurors will ask, “Why didn’t insurance take care of this?” That is a valid question. All licensed drivers in North Carolina are required to carry liability insurance coverage for bodily injury with limits of at least $30,000.00 per person and $60,000.00 per occurrence (30/60). In the vast majority of personal injury cases, liability insurance is involved all the way through satisfaction of any judgment entered on the jury verdict. When we sue a policyholder, the liability insurance company is required under the terms of the policy to defend the claim (which includes hiring defense counsel) and to indemnify the insured for any losses they must pay out; whether that is an agreed upon settlement or a judgment entered in court.

Even though insurance is involved, the jury probably will never know it. North Carolina has laws establishing a prohibition against mentioning the existence (or non-existence) of insurance at trial. The Courts are concerned that the jury might use the existence of insurance as an excuse to compensate the undeserving victim without hurting the wrongdoer (or, not compensating the deserving victim to avoid hurting the uninsured wrongdoer). The purpose of this rule, like all rules of evidence, is to ensure a fair trial and just result. There is much debate over whether this is a valid concern and whether the goal of the rule is accomplished. In my experience, when jurors learn of the existence of insurance after trial, they become upset that they did not hear about it as evidence. This, in my opinion, supports the theory behind the rule, as insurance should not even weigh on their deliberations.

Last year I tried a case where the insurance company intervened on behalf of the named defendant. This occasionally will happen when the named defendant cannot be located and participate in their defense. Since the insurance company has an interest in the outcome of the case, the law allows them to intervene and defend the case on behalf of the named defendant. Often, they will not intervene in their own name so the case caption will remain Sally Smith v. John Doe. Other times, as was the case in that trial, they intervene in their own name and the case then becomes Sally Smith v. Major Insurance Company. After the jury rendered a verdict in favor of my client, several of the jurors told me that the fact that the insurance company was involved did not weigh in on the deliberations and, in fact, it never even came up in discussion.

In contrast, in a case I tried this month several jurors told me afterward that they wished they had known insurance was involved and to what extent. In that case, like in all others, the judge specifically instructed them not to consider matters not in evidence (e.g., insurance). Nevertheless, this is exactly what they did. The jurors assumed, incorrectly, that insurance had already paid my client’s medical bills so they reduced the verdict they were going to render by the amount they assumed was paid. Thus, rather than receiving full compensation for their medical bills plus the harms and losses they suffered, my client only received a portion of that amount because the jurors incorrectly assumed the insurance company had paid the bills.

Like jurors, some clients become upset with these rules. Those are valid feelings, especially when the result is one like the case tried this month. The client often feels it is unfair to them and that it deceives the jury. However, the defendant and the insurance carriers could say the same thing about other insurance rules established by the North Carolina courts. The collateral source rule prohibits the introduction of evidence of payments made to the plaintiff by health insurance plans, Medicare, Medicaid, medical payments coverage, and many other different sources of payment. This benefits the plaintiff because it allows the plaintiff to recover the entire amount of the bills incurred, even if health insurance or some other benefit has paid out already and the jury will likely never know some of the bills were paid (in some cases, however, the health plan has a right to reimbursement for what it has paid). This rule, of course, results in more money to the client that has private health insurance.

Insurance plays a major role in any personal injury case. Despite its large role, the jury most likely will never know of its existence and the Court will specifically instruct them in most cases not to assume that it is or is not there.

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