I read an article in NOW Magazine recently entitled: “Reasonable Doubt: are some lives worth more than others?”
The article discussed how, in serious personal injury cases that go to trial, women, low income persons and minorities tended to receive lower payouts.
Why? Because the compensation often includes money for ‘loss of income’, which is typically evaluated as being less for these groups than for (Caucasian) men.
I started to think further about the article, and it occurred to me that this is part of a bigger issue with personal injury cases that go to a jury trial, an issue that affects every single plaintiff.
It’s the unacknowledged truth that more often than not, juries treat all plaintiffs/victims unfairly without even knowing it.
How is that possible, you ask?
When we think of jury trials in personal injury cases, we often think of dramatic Hollywood-style trials, where the underdog sues and wins millions of dollars. However, in Canada, there are several aspects to personal injury law that impact awards.
These reasons are why personal injury lawyers tend to avoid jury trials if they can, and prefer to settle out of court.
I say this last with one proviso: Your lawyer is well and able to go to court, should the need arise. What I’m talking about here is a preference to avoid court, in order to secure a better payout. Let me explain:
Juries Do Not Understand The Concept Of Money For Injuries
Juries, made up of everyday, ordinary citizens, don’t always understand the complexities involved in allocating money for injuries.
They don’t typically award very high payouts, and one reason for this is a general disdain for the area of personal injury law.
Some of the fairly aggressive advertising by some personal injury law firms that we see today contributes to this view, which can create a bias in the minds of some jurors against the victim, or at least the victim’s legal team.
That aside, there is also a general lack of understanding of how to evaluate permanent or serious impairments. Particularly those that are hidden.
For example, a plaintiff/victim with chronic and permanent pain, depending on severity and the impact to their lives, should be entitled to a decent payout. But chronic pain has no objective evidence for the jury to examine: no x-ray or MRI scan will show it. The plaintiff has to be taken at their word at and if the jury isn’t buying it for whatever reason, the payout could be low.
An out of court settlement or non-jury trial would usually makes better sense as judges and lawyers DO understand the concept of evaluating hidden injuries.
Unfortunately, the system isn’t particularly fair because it allows for either the plaintiff OR the defendant/insurance company to opt for a jury trial, whether or not the other side wants it.
You will rarely see the plaintiff’s side choosing a jury trial because we take the greater risk by putting your case before a jury instead of settling out of court.
Even if the personal injury lawyer is fairly confident of a large award, there is always an element of the unexpected when dealing with a jury trial. We never take anything for granted.
Juries Do Not Understand Deductibles
Another factor in a jury trial is the deductible on a claim.
This can be confusing so bear with me…
Deductibles were put in place with the inception of no-fault insurance back in the 90s to avoid nuisance claims of $5k or $10k that were driving up premiums for everyone.
In fact, no-fault was intended to eliminate this issue by giving claimants enhanced coverage with their own companies and a limited right to sue.
However, in serious cases, the right to sue remains, and awards are given, less a deductible.
The deductible in Ontario for personal injury claims is around $37k.
The issue with jury trials, however, is that most jury members do not understand about these deductibles and they aren’t mentioned during the trial.
So a well-meaning jury may not only undervalue the impact of a hidden injury as discussed above, but if they award a sum lower than $37k, the plaintiff will receive nothing.
Juries think they are doing the right thing, and often have the best of intentions, but they don’t realize that when they award what seems like a tidy sum of $40k, the victim only sees around $3k. Barely enough to cover the cost of a few weeks of intense physio.
Juries Don’t Always Understand That An Insurance Company Is Behind The Defense
In a personal injury suit, the plaintiff / injured party sues the defendant. In a motor vehicle accident, the defendant is the other driver.
The driver who is being sued is obviously backed by an insurance company who will be responsible for paying out compensation, if awarded. It is almost always the insurance company that pays the victim, rarely the other driver, regardless of how rich or poor that other driver is.
However, at no time during the trial can anyone mention the name or even participation of an insurance company, as they are not actually a party in the proceedings.
Now let’s say that the other driver is a very kind elderly woman who has little to her name. Perhaps she hit the victim because she was swerving to miss a puppy that had wandered onto the road. It would be very hard indeed to not feel sympathy for the defendant under such circumstances.
This can cause a jury to award a lower payout because they deem the other driver to be unable to pay a larger amount without risk to their livelihood and family, not realizing that there is an insurance company behind the scene.
Now, it’s easy to say that most intelligent people should be able to put two and two together and recognize the unacknowledged presence of the insurer, but, because it cannot be mentioned at trial, and trials often run for two weeks or more, it becomes less and less obvious to even the most astute jurors.
Heed Your Lawyer’s Advice
It’s no wonder, given all these issues surrounding jury trials, that personal injury lawyers do everything they can to settle out of court for cases that are serious but not catastrophic, like the chronic pain example I mentioned above.
The bottom line here is that, while jury trials may seem like a great idea on the surface, if your personal injury lawyer is taking time to contemplate, understand that he or she is acting in your best interests and weighing the risks carefully.
As always, if you have questions or concerns about injuries following a motor vehicle accident, call a lawyer.